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T H E U N I V E R S I T Y O F T E X A S S C H O O L O F L AW

38th ANNUAL

Immigration and
Nationality Law

FUNDAMENTALS
October 15, 2014

CONFERENCE
October 1617, 2014

Radisson Hotel and Suites Downtown

Austin, Texas
Live Webcasts on October 15, 1617

FundamentalsEarn up to 4.50 Hours of Credit Including 1.00 Hour of Ethics Credit

ConferenceEarn up to 16.00 Hours of Credit Including 3.25 Hours of Ethics Credit
TX Legal Specialization Credit Approved for Immigration and Nationality Law

www.utcle.org

512.475.6700

UT Law CLE
2014 Fundamentals of Immigration and Nationality Law
Schedule

Wednesday Afternoon, Oct. 15, 2014

Presiding Officer:
Sarah E. Woelk, Casa Marianella Immigration Legal Services - Austin, TX

12:00 pm Registration Opens

12:50 pm Welcoming Remarks

1:00 pm

United States Immigration Laws: An Overview

1.00 hr

A discussion of the interplay of unlawful presence, out of status, nonimmigrant,

immigrant and citizenship status for foreign nationals, their employers and their
families.
Paul Parsons, Paul Parsons, PC - Austin, TX

2:00 pm

Immigration Agencies and Basic Terms

0.50 hr

An overview of the various immigration agencies and basic immigration terminology.

Barbara Hines, The University of Texas School of Law - Austin, TX

2:30 pm

Introduction to Family Immigration Practice

1.00 hr

Family reunification has long been the cornerstone of our immigration policy,
accounting for two-thirds of all immigration to the U.S. in a given year. This overview
discusses family visa categories, the qualifications for each, and the application
procedures which govern family petitions.
M. Elizabeth "Liz" Cedillo-Pereira, Cedillo-Pereira & Associates, PLLC - Dallas,
TX
Vanna Slaughter, Catholic Charities of Dallas, Inc. - Dallas, TX

3:30 pm

Break

3:45 pm

Introduction to Removal Proceedings

1.00 hr

An overview of Immigration Court procedures, defenses and discretionary relief.

Barbara Hines, The University of Texas School of Law - Austin, TX
Stephanie Rodriguez Taylor, American Gateways - Austin, TX

4:45 pm

WELCOME RECEPTION (4:45 p.m. to 6:45 p.m.)

Meet and network with your fellow immigration law practitioners for drinks, hors
d'oeuvres and a lively ethics presentation at 5:15 p.m.

5:15 pm

Immigration Case Management and Beginning Ethics

1.00 hr

An immigration practice involves much more than filling out forms. Explore the

ethics

ethical and practical issues that new practitioners should prepare for.
Michelle L. Saenz-Rodriguez, Saenz-Rodriguez & Associates, P.C. - Dallas, TX
Jacqueline L. Watson, Law Office of Thomas Esparza, Jr., P.C. - Austin, TX

6:15 pm

Adjourn

FUNDAMENTALS OF IMMIGRATION AND NATIONALITY LAW

OCTOBER 15, 2014
RADISSON HOTEL AND SUITES DOWNTOWN AUSTIN, TX
United States Immigration Laws: An Overview ................................................................. TAB 1
Immigration Agencies and Basic Terms ............................................................................. TAB 2
Introduction to Family Immigration Practice..................................................................... TAB 3
Introduction to Removal Proceedings .............................................................................. TAB 4
Immigration Case Management and Beginning Ethics ..................................................... TAB 5

Paul Parsons, Paul Parsons, PC - Austin, TX

TAB 01

United States Immigration Laws: An Overview

United States Immigration Laws: An Overview

38th Annual University of Texas Conference
Immigration & Nationality Law
October 15, 2014
Austin, Texas
Paul Parsons, PC | Attorney at Law
704 Rio Grande, Austin, TX 78701
(512) 477-7887
www.immigrate-usa.com

Four Categories of People

Undocumented or Out of Status

Citizens

Nonimmigrants

Immigrants (Lawful Permanent

Residents)

Deferred Action for Childhood

Arrivals (DACA)

Applicants for Family and

Employer Sponsored Immigration
Visa waiting lists are inordinately
backlogged

Out of Status
Person can be out of status but
still be lawfully present!

unlawful presence
180 days = 3 year bar
366 days = 10 year bar

Provisional Waivers
Extreme hardship
to qualifying
relative
Consular
processing still
required

Parole in Place
Immigration
benefits for
relatives of active
duty and former
members of our
U.S. military forces

Repeal of DOMA
Immigration benefits
now available for
same-sex couples
with lawfully
recognized marriage

Love & Marriage

Never marry
for purpose of
obtaining PR
status for
foreign
national

(continued)
Immigration
can be a
secondary
motive for a
bona fide
marriage

Hey buddy, can you spare a job?

Employers should not offer positions to
foreign nationals as an accommodation for
a friend or relative
CIS & DOL search for fraud

Youre here to work?

Business
visitors
should not
seek to enter
the U.S. to
work

Comprehensive Immigration
Reform (CIR)

Presented:
Fundamentals of Immigration and Nationality Law
October 15, 2014
Austin, TX

United States Immigration Laws: An Overview

Paul Parsons

Paul Parsons
Paul Parsons, PC
704 Rio Grande
Austin, TX 78701
parsons@immigrate-usa.com
512-477-7887

TABLE OF CONTENTS
I.

INTRODUCTION................................................................................................................................................... 1

Parole in Place (PIP)

DOMA: Defense of Marriage Act Declared Unconstitutional
Deferred Action Status for Childhood Arrivals (DACA)
Prosecutorial Discretion
II. IMMIGRANT STATUS: EMPLOYMENT- BASED ............................................................................................ 2
A. First Preference................................................................................................................................................ 2
1. Extraordinary ability ................................................................................................................................ 2
2. Outstanding Professors or Researchers ................................................................................................... 2
3. Multinational Executives and Managers ................................................................................................. 3
B. Second Preference ........................................................................................................................................... 3
1. Advanced Degree .................................................................................................................................... 3
2. Exceptional Ability .................................................................................................................................. 3
C. Third Preference .............................................................................................................................................. 3
D. Fourth Preference ............................................................................................................................................ 3
E. Fifth Preference ............................................................................................................................................... 4
III. LABOR CERTIFICATION .................................................................................................................................... 4
IV. NONIMMIGRANT STATUS................................................................................................................................. 5
A. F-1 Student ...................................................................................................................................................... 5
B. J-1 Exchange Visitor ....................................................................................................................................... 6
C. B-1 Business Visitor ........................................................................................................................................ 6
D. Visa Waiver Program ...................................................................................................................................... 6
E. TN Status ......................................................................................................................................................... 6
F. H-1B Specialty Worker ................................................................................................................................... 6
G. L-1 Intracompany Transferee .......................................................................................................................... 7
H. O-1 Extraordinary Ability ............................................................................................................................... 7
I. E-2 Treaty Investor & E-1 Treaty Trader ........................................................................................................ 7
J. Other Types of Employment-Based Nonimmigrant Visas .............................................................................. 8
V. DEVELOPMENTS AFFECTING EMPLOYMENT-BASED CASES .................................................................. 8
A. Department of Homeland Security .................................................................................................................. 8
B. Special Registration ......................................................................................................................................... 8
C. Employment Authorization for Dependent Spouses ....................................................................................... 8
D. Premium Processing ........................................................................................................................................ 8
E. Extensions of Nonimmigrant Status ................................................................................................................ 8
F. Monitoring of International Students .............................................................................................................. 8
G. Protecting Immigration Benefits for Children ................................................................................................. 9
H. Address Change Notification Requirements ................................................................................................... 9
I. Additional Security Clearances ....................................................................................................................... 9
J. Employer or Job Changes While Immigration Applications Pending............................................................. 9
VI. FAMILY BASED IMMIGRANT STATUS ........................................................................................................... 9
A. First Preference.............................................................................................................................................. 90
B. Second Preference ....................................................................................................................................... 100
C. Third Preference .......................................................................................................................................... 100
D. Fourth Preference .......................................................................................................................................... 10
VII. CONCLUSION ..................................................................................................................................................... 10
Visa Bulletin For September 2014 ........................................................................................................................... 11-15

Perhaps the most significant development in

2013 was that Section Three of the Defense of Marriage
Act (DOMA) was declared unconstitutional by the U.S.
Supreme Court on June 26, 2013. This meant that the
federal government had to recognize the legal
marriages of same-sex couples. Same-sex couples in
committed relationships who were married in a state or
country that recognizes such marriages can now receive
a variety of federal protections, including the right to
seek permanent resident status for foreign-born spouses
of U.S. citizens, even if living in another state [that does
not recognize same-sex marriages].

UNITED STATES IMMIGRATION LAWS:

AN OVERVIEW
I.

INTRODUCTION
The threat of terrorism triggered Congressional
and administrative actions that have dramatically
changed United States immigration laws. The most
significant change arose from the Homeland Security
Act of 2002 that transferred immigration enforcement
and adjudication services functions from the now
defunct Immigration & Naturalization Service into the
Department of Homeland Security. Security and
enforcement concerns have taken priority over timely
adjudications of applications for immigration status
submitted by employers for foreign national employees
as well as by U.S. citizens for their relatives.

Deferred Action for Childhood Arrivals

There was one very significant immigration
law development in 2012. On June 15, 2012, President
Obama announced that many children whose parents
brought them into our country prior to age sixteen
would be eligible for some immigration benefits.
Deferred Action for Childhood Arrivals (DACA)
provides eligible applicants a two year Employment
Authorization Document (EAD) which the first DACA
recipients are now starting to renew. Qualified
applicants must have entered the U.S. prior to age 16,
have been younger than 31 on June 15, 2012, and have
been continuously present in the U.S. for at least 5
years. They must have either served in the military or
be enrolled in school or have graduated from high
school or obtained a GED. In addition, they must not
have been convicted of a felony, three misdemeanors,
or any significant misdemeanor. Significantly,
driving under the influence is considered to be a
significant misdemeanor. As of March, 2014, the
USCIS indicated they had received a total of 673,417
requests for DACA relief.

Immigration laws are constantly changing. This

is a heavily regulated field with laws intended both to
protect the United States workforce and to unify
families. Congress must juggle competing interests in
determining immigration policy: employers want to be
able to hire skilled foreign labor, while labor unions
and professional societies want to improve wages and
working conditions for employees; immigrant families
want to bring their relatives to the U.S., while the quota
system lags ever farther behind; a global economy
demands decreasing barriers, while an influx of
unlawful immigration and the threat of terrorism results
in tightening controls.
Parole in Place (PIP)
On November 15, 2013, the USCIS released a
new Policy Memorandum which spelled out the
process for applying for Parole in Place (PIP). PIP may
be sought for spouses, children, and parents of persons
serving on active duty in the U.S. Armed Forces, in the
Selected Reserve of the Ready Reserve, or who
previously served in either of the two mentioned above
(i.e. veterans). An application is submitted without fee
to the USCIS Field Office with jurisdiction over the
applicants residence, and if granted, the applicant
receives an I-94 card indicating parole in the U.S. for
one year. Those applicants who would not normally be
eligible to apply for adjustment of status within the
United States because of their manner of entry may
then solicit permanent resident status from within the
United States despite unauthorized entries. It is
important to note that the applicant should not actually
leave the United States and use the PIP I-94 card to seek
to return from travel abroad. The intent of PIP is to
keep families together, especially the loved ones of
those who fight to keep our country safe.

Prosecutorial Discretion
The Obama Administration has been
exercising prosecutorial discretion to terminate or
not initiate removal proceedings against certain foreign
nationals who have not been convicted of a significant
criminal offense and who are not a terrorist threat or
national security risk to our country.
The U.S. Citizenship & Immigration Services
(CIS) concentrates on the intent of the individual: Is
he/she an intending immigrant or nonimmigrant? The
wrong answer might result in a return trip to the home
country. Nonimmigrant status is temporary: one may
only remain in the U.S. for a limited period of time.
Immigrant status, commonly called "green card" status,
signifies that a person has been granted permanent
resident status and may reside in the U.S. indefinitely.
These government websites provide useful
information about immigration laws:

DOMA: Defense of Marriage Act Declared

Unconstitutional

CIS considers "extraordinary ability" to be a level of

expertise indicating that the individual is one of a few
who have risen to the top of his/her field. The petitioner
must demonstrate extraordinary ability through
extensive documentation showing sustained national or
international acclaim, and that the foreign nationals
achievements have been recognized by others in the
field of expertise. The regulations provide a list of
criteria for guidance, which are summarized below:

www.uscis.gov

(U.S. Citizenship & Immigration

Services)
www.dol.gov
(U.S. Department of Labor)
www.travel.state.gov (U.S. Department of State)
www.twc.tx.us (Texas Workforce Commission)

II. IMMIGRANT STATUS:

EMPLOYMENT- BASED
Generally either a close family relative or an
employer must sponsor someone for immigration. The
first method relies on a close tie to a U.S. citizen or
permanent resident. If a foreign national does not have
such a relative, he/she might qualify under one of the
employment-based
categories.
Currently
the
Immigration & Nationality Act sets an annual limit of
226,000 immigrant preference numbers for
family-based categories, and 143,949 immigrant
preference
numbers
for
employment-based
categories. The per-country limit for preference
immigrants is now 25,896.

Employment-Based Categories
1st Preference:

Extraordinary Ability
Outstanding Professors &
Researchers
Managers & Executives

2nd Preference:

Advanced Degree Professionals

Exceptional Ability

3rd Preference:

Professionals (Bachelors degree)

Skilled Workers (two years
training)
Other Workers (unskilled)

4th Preference:

Special Immigrants (religious

workers)

5th Preference:

Immigrant Investors

Major prizes or awards.

Memberships in organizations that require
outstanding achievement.
Cites to or articles about the individuals work.
Participation as a judge of the work of others.
Evidence of original scientific, scholastic,
artistic,
athletic
or
business-related
contributions.
Authorship of scholarly articles.
Artistic exhibitions or showcases.
Performance in a leading or cultural role for
organizations that have a distinguished
reputation.
High salary in relation to others in the field.
Commercial success in the performing arts.
Other comparable evidence.

2.

Outstanding Professors or Researchers

The second subgroup of the priority worker
category is reserved for certain professors or
researchers who are internationally recognized as being
outstanding in specific academic areas. The applicant
must have at least three years teaching or research
experience. Under certain conditions the CIS will count
teaching or research experience gained while working
toward an advanced degree. The individual must either
be (a) in a tenure-track position teaching or conducting
research at a university, or (b) in a research position
with a private employer who employs at least three
full-time researchers and who has achieved
documented accomplishments in the academic field.
As with extraordinary ability, the petitioner must
demonstrate outstanding ability through extensive
documentation showing international recognition in the
field. The regulations provide a list of criteria for
guidance, which are similar to extraordinary ability:

A. First Preference
The First Preference is for "priority workers" and
includes individuals of extraordinary ability,
outstanding professors or researchers, and certain
executives and managers of multinational corporations.
Because Congress regards them as priority workers,
they are exempt from Department of Labor
requirements for labor certification.

1.

Extraordinary ability
The first subgroup of the priority worker category
is reserved for applicants with extraordinary ability in
the sciences, arts, education, business, or athletics. The

Major prizes or awards.

Membership in organizations that require
outstanding achievement.
Cites to or articles about the individuals work.
Participation as a judge of the work of others.
Evidence of original scientific research.
Authorship of scholarly articles or books

national economy, cultural or educational interests, or

welfare of the United States. The CIS is looking for a
level of expertise significantly above that ordinarily
encountered in the field. It is lower than the
"extraordinary ability" standard, and has different
guidelines:

3.

Multinational Executives and Managers

The third subcategory of priority workers is
reserved for certain executives and managers of
multinational companies. To be eligible the manager or
executive must have been employed at least one of the
three preceding years by the overseas parent,
subsidiary, affiliate, or branch of the U.S. employer.
They must have filled a position in a managerial or
executive capacity for at least one year, and be coming
to the U.S. to fill a position in a similar capacity.

The petitioner must document that the proper

relationship exists between the two entities. In some
cases a joint-venture may be acceptable to the CIS. In
situations where there is less than 50% ownership, there
might be equal control and veto power. The CIS
definition of "managerial capacity" includes both
managers of an organization and managers of a
function; however, first line supervisors are not
considered managers unless the employees they
supervise are also professionals.

Degree relating to area of exceptional ability.

Ten years of experience.
Professional license.
High salary in relation to others in the field.
Membership in professional associations.
Recognition for achievements and significant
contributions.
Other comparable evidence.

C.

Third Preference
The Third Preference category includes
professionals who hold a Baccalaureate degree (or
foreign degree equivalency); skilled workers capable of
performing a job requiring at least two years of training
or experience; and "other workers," who are defined as
those who work in positions requiring less than two
years of training or experience. Visas are equally
available to professionals and skilled workers under
this category. Congress has limited the quota for
"other workers" to only 10,000 per year.
All employees seeking to enter in the Third
Preference category must obtain a labor certification
from the Department of Labor.

B.

Second Preference
The Second Preference category includes
members of the professions holding advanced degrees,
and those who have exceptional ability in the sciences,
arts or business. The CIS regulations define a
profession as an occupation that requires at least a
Bachelors degree to enter into the field. An employee
seeking to enter in this category must obtain a labor
certification from the Department of Labor unless the
CIS determines that a waiver of the labor certification
requirement would be in the "national interest." A labor
certification certifies that the employment of the
foreign worker in a particular position will not
adversely affect the U.S. labor market.

D. Fourth Preference
The Fourth Preference category is for Special
Immigrants, which primarily includes ministers and
religious workers. To be eligible, the applicant must
have been a member of a religious denomination that
has had a bona fide non-profit religious organization in
the U.S. for at least the two years immediately
preceding the application. The applicant must be
entering the United States to work (1) as a minister of
religion, (2) for the organization in a religious capacity,
or (3) for the organization or a related tax-exempt entity
in another professional capacity. The applicant must
have been carrying on such work as a minister,
professional or other worker for at least two years
preceding the application. The applicant must have at
least a Baccalaureate degree to qualify as a religious
professional. A combination of experience and
education may not be substituted for a Baccalaureate
degree.

1.

Advanced Degree
This subcategory requires the professional to have
at least a Masters degree or equivalent. An advanced
degree means any degree higher than a Baccalaureate
degree. The CIS will also consider an applicant who
has a Baccalaureate degree plus five years of
progressive experience in the profession to be
equivalent to a Masters degree. Note that to require
five years of experience in a job offer for purposes of
labor certification may conflict with minimum job
standards set by the Department of Labor. For this
reason it may not always be possible to include an
individuals full experience to meet the advanced
degree category.

E.

Fifth Preference
The Fifth Preference category is for foreign
investors. It allows conditional residency for a person
who invests $ 1 million (or under certain circumstances
$500,000) in a new commercial enterprise that employs

2.

Exceptional Ability
This subcategory is reserved for those who have
"exceptional ability" in the sciences, arts or business,
and who will substantially benefit prospectively the

The employer must consider any U.S. workers

who apply for the position, but does not need to
consider non-U.S. workers (e.g., F-1 students and H1B temporary workers). The employer must determine
the minimum job requirements for education and
experience, but may not tailor these job requirements to
the foreign workers background or include unduly
restrictive job requirements or duties in the job
description. The ETAs Certifying Officer will utilize
the O*NET (www.onetcenter.org) to evaluate and
determine if the employers stated job requirements and
duties are normal to the occupation involved. The
O*NET is based upon the Standard Occupational
Classification (SOC) system used by Federal statistical
agencies to classify workers into occupational
categories for the purpose of collecting, calculating, or
disseminating data.

ten full-time U.S. workers. The investor must directly

manage the business or at least be involved through
policy formation. A "new commercial enterprise"
includes creating a new business, purchasing a business
and reorganizing it, or expanding an existing business
by forty percent. The investment might be in cash or
cash equivalents, equipment, inventory, or other
tangible property. Indebtedness secured by the assets of
the entrepreneur might also be considered part of the
investment.
III. LABOR CERTIFICATION
For most employees, labor certification will be a
prerequisite
for
obtaining
employment-based
permanent residence. The Immigration & Nationality
Act requires that most foreign nationals who seek to
enter the U.S. to perform skilled or unskilled labor are
not admissible unless the U.S. Secretary of Labor
certifies that there are not sufficient U.S. workers
available for the position, and that employment of the
foreign national will not adversely affect the wages and
working conditions of similarly employed U.S.
workers.
The labor certification program for the permanent
employment of aliens in the U.S. is administered by the
Dept of Labors Employment & Training
Administration (www.doleta.gov).

As a general rule, the employer may not

include as a requirement any experience which the
foreign worker has gained in the same or similar
position with the firm, nor require knowledge or skills
that could only be obtained in-house with the firms
products or services. Any special requirements, such as
a foreign language, must be thoroughly documented as
business necessity. This labor market test is structured
to determine if there are any minimally qualified
candidates available for the positionit is not relevant
to the Certifying Officer that the incumbent foreign
worker is the best qualified of the candidates. U.S.
candidates may be rejected for only lawful job-related
reasons, i.e., they do not meet the stated minimum
education/experience requirements, or it is clear from
their backgrounds that they would not be able to
perform the job duties. The Certifying Officer will
consider an applicant qualified if he/she could learn the
necessary job skills within a reasonable period of onthe-job training.

How does it work?

The labor certification process involves a test
of the labor market to ensure that the employer is not
overlooking minimally qualified U.S. workers for the
position. The employer must perform certain
recruitment steps, evaluate each applicants
background, and determine whether any are qualified
for the position. Upon conclusion of the recruitment
activities, the employer must prepare a recruitment
report and file an Application for Permanent
Employment Certification (ETA Form 9089) with one
of the ETAs National Processing Centers. In order to
ensure that U.S. workers will not be adversely affected
by the foreign workers employment, the employer
must offer a salary that meets at least the prevailing
wage as determined by the U.S. Department of Labor.
Employers may also submit private surveys for
consideration, but there are stringent criteria governing
how the survey was conducted, its sampling size, and
how the median or mean wage was calculated.

What must be done under PERM?

PERM stands for Program Electronic Review
Management system. After conducting the required
recruitment and evaluating the candidates, the
employer will usually submit electronically the
ETA9089 application to the National Processing
Center. On the application the employer will attest to
the job requirements, the recruitment steps, the
prevailing wage, and that no qualified candidates could
be found. The application should be reviewed within
sixty days and a determination made to either conduct
an audit or to certify the employers application. If an
audit is required, then the employer must submit the
ads, postings, resumes, and recruitment report to the
Certifying Officer within thirty days. The Certifying

Who must be considered?

Officer will conduct random audits to ensure the

integrity of the program.

IV. NONIMMIGRANT STATUS

Nonimmigrants may remain in the U.S. for only a
temporary period of time and are restricted to the
activity consistent with their visas. Nonimmigrants are
expected to depart the U.S. by the expiration date on
their I-94 entry/departure cards unless they have filed
for an extension. There can be serious legal
consequences for anyone who overstays his/her
authorized period of admission. The following is a
description of some of the commonly used employment
or business-related visas:

Under PERM, the employer will post a notice

on-site for ten consecutive business days, and conduct
six recruitment steps. These steps will involve the
following:
(1) Job ad in Sunday newspaper classifieds,
(2) Second job ad in Sunday paper or in an appropriate
professional journal, and
(3) Job order with the state workforce agency for thirty
days.

A. F-1 Student
An F-1 student is usually granted "Duration of
Status" which is the period required to complete the
program of study, plus any authorized period of
practical training. Students are expected to maintain a
full-time course load. Eligibility to work includes
part-time employment on-campus (full time during
break periods). Off-campus employment based on
economic hardship can be authorized by the CIS if a
student can verify that the hardship is based on
unforeseen circumstances.
Both hardship
authorization and practical training are available only
after a student has been enrolled full-time for a
consecutive nine- month period.

The employer must select three additional

recruitment steps from these alternatives:
a) Job Fairs
b) Employers Web Site
c) Job Search Web Site (other than
employers)
d) On-Campus Recruiting
e) Trade or Professional Organizations
f) Private Employment Firms
g) Employee Referral Program with
Incentives
h) Campus Placement Offices
i) Local and Ethnic Newspapers
j) Radio and Television Ads

There are two types of practical training:

curricular and optional. Curricular practical training
may be authorized by a Designated School Official
(DSO) during the students course of study, and may
include internships, cooperative education programs,
work/study programs, or practicums. The employment
training offered must be integral to the students
curriculum. Optional practical training is authorized by
the CIS upon completion of the students studies. This
employment should relate to the students major area
of study. One important caveat: if the F-1 student has
used twelve or more months of full-time curricular
practical training, then he/she will normally be
ineligible for optional practical training after
graduation.

The ad or posting must contain the company

name, direct applicants to report or send resumes to the
employer, provide enough detail to adequately apprise
the potential applicants of the job opportunity, and
indicate the area of employment if not apparent from
the employers address. Upon conclusion of the
recruitment steps, the employer will review the
resumes, conduct any interviews necessary to better
ascertain a candidates qualifications, and prepare a
recruitment report summarizing the results. The
recruitment report will describe the recruitment steps
undertaken and the results achieved, the number of
hires (if any) and the number of applicants rejected
(categorized by the lawful job related reasons for such
rejections). In the event of an audit, the Certifying
Officer may request the U.S. workers resumes or
applications (sorted by the reasons the workers were
rejected).

F-1 students, M-1 vocational students, and J-1

exchange visitors are now closely monitored by
educational institutions and the CIS under the Student
and Exchange Visitors Information System (SEVIS)
mandated by the U.S.A. Patriot Act.

An approved labor certification is valid only for

the specific job opportunity and for the area of intended
employment stated on the application. The labor
certification can no longer be used if it is not filed
within 180 days of approval with an employer petition
(I-140) submitted to the US CIS. The ETA may revoke
a labor certification if they discover that there has been
fraud or willful misrepresentation in the process.

B.

J-1 Exchange Visitor

The J-1 category includes certain students as well
as visiting scholars, corporate trainees, professors,
research assistants, and other field specialists. The J-1
program is administered by the U.S. Department of
State. As with F-1 students above, J-1 students may be

TN status; however, Mexicans must first obtain a visa

from a U.S. consulate. TN status is
approved for up to three years, and may be extended by
the CIS.

eligible for incidental on-campus employment if their

school is also their program sponsor. For students on
another sponsors program, that sponsor would need to
authorize any on-campus employment.
The
Responsible Officer (RO) can authorize off-campus
employment based on hardship or academic training.
The academic training is available during or after the
student s academic program for a maximum of 18
months based on an employment offer in the field of
study. Bona fide post-doctoral positions allow up to 36
months of academic training. Many (but not all)
exchange visitors are obligated to a two-year foreign
residence in their home country prior to seeking an
H-1B specialty worker or immigrant status in the U.S.
Sometimes waivers of this requirement are not granted
even if the foreign national marries a U.S. citizen and
has U.S. citizen children.

F.

H-1B Specialty Worker

The H-1B category is for workers in specialty
occupations, which means an occupation that normally
requires attainment of at least a Bachelors degree.
Generally one must have a degree in the specialty to
qualify, or the degree equivalent. Positions in
education, engineering, accounting, finance, and
research are normally considered professional. For
nontraditional professions, the CIS will look to the
complexity or uniqueness of the job duties, and whether
a degree requirement is common to the industry.
An employer must file a Labor Condition
Application (LCA) with the U.S. Department of Labor
(DOL) attesting that the hiring of H-1B workers will
not adversely affect the wages and working conditions
of other U.S. workers in the same position at that
location. The employer must determine the
prevailing wage for the region, and attest that the
wage offered to the foreign national is the higher of the
actual and of the prevailing wage. Notice must be
posted on-site, and an LCA file maintained for public
inspection.

C.

B-1 Business Visitor

The B-1 visa is intended for business trips to the
U.S. to conduct business on behalf of a foreign
employer. The B-1 visitor may not be employed to
work for a U.S. employer. Permitted B-1 activities
include business meetings, conferences or seminars,
contract negotiations, consultations, litigation, sales
calls, plant tours, market research, contract or warranty
follow-up, and formal classroom training (but not
on-the-job training). Tourists are eligible to seek B-2
visitor visas.

There is a numerical limit on the number of H-1Bs

issued each year. The employer must plan well in
advance of hiring an H-1B nonimmigrant worker
because the annual allotment of H-1B numbers is used
up soon after applications are accepted for the
upcoming fiscal year. The H-1B petition can be
approved for three years, and extended for an additional
three years for a maximum stay in the U.S. of six years.
Section 11030 of the 21st Century Department of
Justice Appropriation & Authorization Act allows an
H-1B employee to obtain extensions beyond the
traditional six-year limit if an alien labor certification
has been pending for over one year. If a PERM labor
certification has been obtained and an employers I-140
immigrant petition approved, an H-1B worker who has
used up the traditional six-year limit could seek a three
year extension if no immigrant visa numbers are
available. A person with an H-1B might be "portable"
to a new employer once a LCA is filed with the DOL
and a petition filed with the CIS. An additional $1225
fee can be paid to the CIS for "premium processing" so
that the CIS will adjudicate an H-1B (or L-1) petition
within 15 days (or at least issue a request for more
evidence needed to promptly adjudicate such a
petition).

D. Visa Waiver Program

The visa waiver program may be used for the same
purposes as a B-1 business visitor or B-2 tourist visa.
This program waives the requirement to first obtain a
visa at a U.S. consulate. Instead, the visitor may fly to
the U.S. and apply at an inspection point for entry into
the U.S. The immigration inspector will make an
immediate decision and there is virtually no appeal of
a negative decision. This program is only for visitors
from certain countries where there has been
traditionally low fraud. Entry will be authorized for
ninety days, and no extensions or changes of
nonimmigrant status are allowed (except for
immediate relatives of U.S. citizens who might be
eligible to seek immigrant status).
E.

TN Status
The TN category arose from the North American
Free Trade Agreement (NAFTA). Individuals from
Canada or Mexico must qualify under one of the
occupations listed in the treaty. Some of the professions
listed include engineers, architects, accountants,
economists, computer systems analysts, foresters,
graphic designers, mathematicians, research assistants,
and scientific technicians/technologists. A Canadian
may apply at an international airport or border post for

those for the First Preference "extraordinary ability"

petitions:

G. L-1 Intracompany Transferee

The L-1 category allows multinational
corporations to temporarily transfer certain employees
to their U.S. facilities. The threshold requirement is that
the employee has worked for the company for at least
one year (in the last three) prior to transferring to the
United States.

An L-1 petitioner must document that a qualifying

relationship exists between the U.S. company and its
foreign parent, subsidiary, affiliate or branch. The
general rule is that one company must have effective
control of the other. The CIS will consider joint
ventures or situations where there is less than majority
ownership but effective control of the other, such as by
veto power.

Major prizes or awards.

Membership in organizations which require
outstanding achievement.
Cites to or articles about the individuals work.
Participation as a judge of the work of others.
Evidence of original scientific, scholarly, or
business-related contributions.
Authorship of scholarly articles.
Employment in a critical or essential capacity
for an organization or establishment that has a
distinguished reputation.
High salary in relation to others in the field.

Criteria for artists:

Perform services as a lead/starring participant
in a production or event with a distinguished
reputation.
National or international recognition for
achievements.
Commercial or critically acclaimed success.
Significant recognition from critics, experts, or
government agencies.
High salary in relation to others in the field.

There are two types of L-1s: the L-1A for

managers and executives, and the L-1B for those who
have "specialized knowledge" of the companys
product or an advanced level of knowledge of
processes and procedures of the company. The CIS
definition of managerial capacity includes management
of an organization or management of a function of the
company. This category does not include front line
supervisors unless the employees they supervise are
other professionals.
I.

E-2 Treaty Investor & E-1 Treaty Trader

Nationals of over forty countries with an
appropriate treaty might qualify for a nonimmigrant
treaty trader or treaty investor visa. A treaty trader
normally is involved with an exchange of goods or
services between his/her country and the United States.
A treaty investor must invest a "substantial" amount of
capital into a business enterprise that he/she will
personally develop and direct. The treaty investor must
place the funds at risk, have other resources, and not
merely invest a marginal amount of capital into the
business for the purpose of earning a living for the
investor and his/her family.
The amount of the
investment is not defined but rather depends on the
nature of the enterprise.

Usually an L-1 petition may be initially approved

for three years, and extended in two-year increments.
An L-1A manager/executive may normally stay a
maximum of seven years in the U.S.; an L-1B
"specialized knowledge" professional may stay a
maximum of five years.
The usual procedure is to file an individual L-1
petition with the CIS. For larger companies with many
transferees each year, there is an option to file for a
blanket L-1 petition approval. Upon approval of a
blanket petition, individual petitions no longer need be
filed with the CIS, thus cutting processing times. CIS
processing times for individual L-1 petitions can be
several months. An additional $1225 fee can be paid
to the CIS for "premium processing" so that the CIS
will adjudicate an L-1 (or H-1B) petition within 15 days
(or at least issue a request for more evidence needed to
promptly adjudicate such a petition).

J.

Other Types of Employment-Based

Nonimmigrant Visas
There are many other types of employment related
nonimmigrant visas for qualified foreign nationals who
will be employed in particular positions.
These
categories include but are not limited to: A visas for
diplomats and their dependents, D visas for crewmen,
H-2A visas for seasonal agricultural workers, H-2B
visas for temporary skilled or unskilled laborers, I visas
for international media representatives, M visas for
vocational students, P visas for athletes and group
entertainers, Q visas for participants in international

H. O-1 Extraordinary Ability

The O-1 category is for aliens with extraordinary
ability in the sciences, arts, education, business, or
athletics. Generally extraordinary ability means a level
of expertise indicating that the individual is one of a
small percentage who has risen to the top of his/her
field. The CIS guidelines for proving "extraordinary
ability" under this category are virtually the same as

cultural exchange programs, and R visas for certain

religious workers.

C. Employment Authorization for Dependent

Spouses
Legislation now allows E-2 spouses of treaty
traders and treaty investors, as well as L-2 spouses of
L-1 intracompany transferees, to work and obtain
employment authorization documentation from the
CIS. The CIS is considering employment authorization
for H-4 spouses but this has not yet been implemented.

V. DEVELOPMENTS AFFECTING
EMPLOYMENT-BASED CASES
A. Department of Homeland Security
The most significant change arose from the
Homeland Security Act of 2002 (Pub. L. No. 107-296,
116 Stat. 2135) which moved both immigration
enforcement and adjudication services from the now
defunct Immigration & Naturalization Service into the
new Department of Homeland Security. Security and
enforcement concerns continue to take priority over
timely adjudications of applications for immigration
benefits submitted by employers for foreign national
employees and by U.S. citizens and residents for their
relatives.
The Department of Homeland Security includes
three distinct immigration agencies. Customs and
Border Protection (CBP) focuses on the movement of
goods and people across our borders. Immigration and
Customs Enforcement (ICE) focuses on the interior
enforcement of immigration and customs laws.
Citizenship and Immigration Services (CIS) is
responsible for adjudications of visa petitions and
applications for naturalization, asylum, or refugee
status.
This law requires in Section 458 that the
Department of Homeland Security (DHS) eliminate
immigration backlogs.
Prompt adjudication of
applications and petitions for immigration benefits is
now a priority for the CIS. The immigration courts
remain under the Executive Office for Immigration
Review of the U.S. Department of Justice.
The
functions of the INS moved to the DHS on March 1,
2003.

D. Premium Processing
An additional $1225 fee can be paid to the CIS for
"premium processing" so that the CIS will adjudicate
an H-1B, O-1, L-1, or certain other types of
nonimmigrant petitions within 15 days (or at least issue
a request for more evidence needed to promptly
adjudicate such a petition).
Premium processing is available for most
employer I-140 Immigrant Petitions for Alien
Worker. Presently the CIS will not accept premium
processing for multinational manager or for national
interest waiver petitions.
E.

Extensions of H-1B Nonimmigrant Status

Section 11030 of the 21st Century Department of
Justice Appropriation & Authorization Act allows an
H-1B nonimmigrant employee to obtain extensions
beyond the normal maximum time limits if an alien
labor certification has been pending for over one year
or if an I-140 petition was approved and visa numbers
are unavailable.
F.

Monitoring of International Students

F-1 academic students, M-1 vocational students,
and J-1 exchange visitors are now closely monitored by
educational institutions and the CIS under the new
Student and Exchange Visitors Information System
(SEVIS) mandated by the U.S.A. Patriot Act.

B.

Special Registration
The Department of Homeland Security (DHS)
implemented a call-in "Special Registration" program
which required males over age sixteen who are citizens
or nationals of designated countries and who are not
U.S. citizens, permanent residents, diplomats, refugees
or asylees to register with the CIS. This registration
was part of the National Security Entry-Exit
Registration System (NSEERS), which was the DHS
first step towards developing a comprehensive
entry-exit program. The first group required to appear
for registration interviews were citizens and nationals
from Iran, Iraq, Libya, Sudan and Syria. Another
twenty countries were later added to the list. This
registration required a designated foreign national to
discuss with a CIS officer his stay and activities in the
U.S, provide fingerprints, and have his photo taken.

G. Protecting Immigration Benefits for Children

The Child Status Protection Act amended the
Immigration & Nationality Act on August 6, 2002.
Children of foreign nationals seeking U.S. permanent
resident status previously lost the opportunity to
immigrate with their parents if they reached age
twenty-one while waiting for the CIS to adjudicate
pending immigration applications. Fairly complicated
rules essentially require the CIS and U.S. consular
officers to establish such a childs age as the date of
filing and not the date of adjudication of the application
for permanent resident status.
H. Address Change Notification Requirements
The CIS now requires all foreign nationals,
including permanent residents, to report any change in
address within ten days of moving. Failure to provide

similar" position; however, many of these cases have

been approved by the CIS.

notification is a misdemeanor offense that could result

in a fine and/or sentence. If the failure to provide notice
is found to be willful, the alien could be removable
from the U.S. The form to use for an address change
is the AR-11 which is available in the Immigration
Forms tab on the CIS website at:

VI. FAMILY BASED IMMIGRANT STATUS

The immediate relatives of U.S. citizens do not
come under the quota system, so immigrant visas are
always available. "Immediate relatives" are defined as
spouses of U.S. citizens, parents of U.S. citizens over
the age of 21, and unmarried children (under the age of
21) of U.S. citizens. Note that the spouse of a U.S.
citizen will only be granted "conditional" permanent
resident status for an initial two years if the couple has
been married less than two years at the time of
adjudication. The CIS will want to verify at the end of
this period that the couple still resides together and/or
that no fraud was involved. A waiver could be sought
if the couple divorced during this period. Waivers
could also be sought if the U.S. citizen died, or based
upon extreme hardship or if the foreign national was
battered or subjected to extreme cruelty.

http://www.uscis.gov
I.

Additional Security Clearances

Due to the terrorist attacks of 9/11, and to
enhanced computer technology, many additional
security checks must be completed before the CIS or
U.S. consular officials will approve nonimmigrant
visas, immigrant status, or naturalization for U.S.
citizenship. Employers have seen and will probably
continue to see longer delays before foreign national
workers and their dependents will be able to enter the
U.S. or obtain extensions of status. Congress passed
the Enhanced Border Security and Visa Entry Reform
Act of 2002, which included a new security system
known as CHIMERA. Many other new laws such as
the National Security Entry Exit Registration System
(NSEERS) seek to coordinate security clearances
between the CIA, FBI, CIS, CBP, ICE, Department of
State, and other agencies. The move of all immigration
functions into the Department of Homeland Security
sought to coordinate these new security clearances;
however, applications and petitions for employment
authorization and other benefits continue to be delayed.

If not an immediate relative, an applicant must

show a relationship under one of the family-based
categories listed below:
Family-Based Categories

J.

Employer or Job Changes While Immigration

Applications Pending
Downturns in the economy trigger new problems
for employers as well as foreign national employees.
The U.S. Department of Labor issued requirements
relating to applications for permanent alien labor
certifications in situations when the employer has laid
off workers during the prior six months as well as when
there have been layoffs in a particular industry. If the
employer has terminated workers, the employer must
provide documentation about the number of workers
laid off in the particular occupation and provide lawful,
job related reasons that any laid off workers were
rejected for the position for which certification is
sought. Laid off foreign national employees often must
scramble to change to another nonimmigrant
immigration status, if eligible, or seek to take
advantage of the H-1B portability provisions. A useful
change allows an intending immigrant whose
adjustment of status application has been on file for
over 180 days to transfer to a "same or similar" position
with another employer without abandoning the pending
immigration applications if the employers I-140
petition has been approved.
There are still no
regulations to interpret the definitions of a "same or

1st Preference:

Unmarried sons and daughters (age

21 or older) of U.S. citizens.

2nd Preference:

Spouses and children (under 21) of

permanent residents, or unmarried
sons and daughters (over age 21) of
permanent residents.

3rd Preference:

Married sons and daughters of U.S.

citizens (over age 21).

4th Preference:

Brothers and sisters of U.S. citizens

(over age 21).

A. First Preference
The First Preference category is reserved for the
adult children of U.S. citizens, i.e., those children who
are now over the age of 21 and therefore traditionally
fell out of the "immediate relative" definition. The adult
child must be unmarried. As with all the family-based
categories, there is typically a backlog since there are
more applicants than visas available under the annual
allocations. Currently applicants from most countries
have waited over seven years for a visa number to
become available in this category. Applicants from
certain countries have faced an even longer backlog:
ten years for nationals of the Philippines. Visa numbers
in this category for Mexican nationals are only

available if they registered prior to June 1, 1994. Unless

Congress increases the annual limit of 226,000
immigrant visas for family-based categories, it seems
likely these backlogs will continue to increase. The
Child Status Protection Act (CSPA) allows some
children to still be considered under the Second
Preference category even if they turned age twenty-one
before their cases were completed.

VII. CONCLUSION
The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 made our complex
immigration system even more restrictive for aspiring
immigrants. In 2003, the legacy Immigration &
Naturalization Service (INS) was absorbed by the
Department of Homeland Security. This complete
reorganization as well as the concentration on security
issues might result in even longer delays for families
seeking to reunite and for employers seeking to obtain
temporary as well as permanent employment for
needed foreign national personnel.
Despite these
concerns, there have been a few changes that benefit
employers and their foreign national employees as well
as U.S. residents and citizens sponsoring their relatives.

B.

Second Preference
The Second Preference category is split into two
subcategories: 2A is reserved for the spouses and
unmarried children (under the age of 21) of permanent
residents, and 2B is reserved for unmarried children age
21 or over. There is always a backlog. The waiting
period for most 2A applicants has recently been about
eight months, and seven years for 2B applicants. The
backlogs are even longer for 2B applicants from
Mexico and the Philippines.
Note that this category is reserved for petitioners
who have lawful permanent resident ("green card")
status. After a certain period of time (usually three to
five years) a permanent resident has the option to seek
naturalization, i.e., become a U.S. citizen. In some
cases it may be in the interest of the permanent resident
to seek citizenship in order to petition for certain
relatives and avoid the long delays in the Second
Preference category.
C. Third Preference
The Third Preference category is reserved for the
married sons and daughters of U.S. citizens, regardless
of age. The backlog for most Third Preference
applicants is now nearly eleven years; however, for
applicants from Mexico it has been almost twenty-one
years, and applicants from the Philippines have been
waiting over twenty-one years.
D. Fourth Preference
The Fourth Preference category is reserved for
brothers and sisters of U.S. citizens. Note that a U.S.
citizen must be at least age 21 to petition for siblings.
This category also has significant backlogs. Currently
applicants from most countries have been waiting over
twelve and a half years; however, for the Philippines
the wait has been over twenty-three years. In other
words, a U.S. citizen originally from the Philippines
who filed petitions for brothers and sisters on or before
May 15, 1991 would only now be able to immigrate
his/her siblings born in the Philippines.
Once
permanent residents obtain U.S. citizenship, they
sometimes petition for other family members. Since so
many people have obtained their citizenship during the
intervening years, it is expected that the backlogs in this
category will continue to grow and reach thirty years or
longer.

10

Visa Bulletin for September 2014

Number 72
Volume IX
Washington, D.C
STATUTORY NUMBERS
1.
This bulletin summarizes the availability of immigrant numbers
during September. Consular officers are required to report to the Department of
State documentarily qualified applicants for numerically limited visas; U.S.
Citizenship and Immigration Services in the Department of Homeland Security
reports applicants for adjustment of status. Allocations were made, to the extent
possible, in chronological order of reported priority dates, for demand received by
August 12th. If not all demand could be satisfied, the category or foreign state in
which demand was excessive was deemed oversubscribed. The cut-off date for
an oversubscribed category is the priority date of the first applicant who could not
be reached within the numerical limits. Only applicants who have a priority
date earlier than the cut-off date may be allotted a number. If it becomes
necessary during the monthly allocation process to retrogress a cut-off date,
supplemental requests for numbers will be honored only if the priority date falls
within the new cut-off date announced in this bulletin. If at any time an annual
limit is reached, it would be necessary to immediately make the preference
category "unavailable", and no further requests for numbers will be honored.
2.
The fiscal year 2014 limit for family-sponsored preference immigrants
determined in accordance with Section 201 of the Immigration and Nationality Act
(INA) is 226,000. The fiscal year 2014 limit for employment-based preference
immigrants calculated under INA 201 is 150,241. Section 202 prescribes that the
per-country limit for preference immigrants is set at 7% of the total annual familysponsored and employment-based preference limits, i.e., 26,337 for FY-2014. The
dependent area limit is set at 2%, or 7,525.
3. INA Section 203(e) provides that family-sponsored and employment-based
preference visas be issued to eligible immigrants in the order in which a petition
in behalf of each has been filed. Section 203(d) provides that spouses and children
of preference immigrants are entitled to the same status, and the same order of
consideration, if accompanying or following to join the principal. The visa prorating
provisions of Section 202(e) apply to allocations for a foreign state or dependent
area when visa demand exceeds the per-country limit. These provisions apply at
present to the following oversubscribed chargeability areas: CHINA-mainland
born, INDIA, MEXICO, and PHILIPPINES.
4. Section 203(a) of the INA prescribes preference classes for allotment of Familysponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

11

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:

numbers not required for fourth preference.

23,400 plus any

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents: 114,200, plus the number (if any) by which the worldwide family
preference level exceeds 226,000, plus any unused first preference numbers:
A. (F2A) Spouses and Children of Permanent Residents: 77% of the overall
second preference limitation, of which 75% are exempt from the per-country limit;
B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent
Residents: 23% of the overall second preference limitation.
Third: (F3) Married Sons and Daughters of U.S. Citizens:
numbers not required by first and second preferences.

23,400, plus any

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:

numbers not required by first three preferences.

65,000, plus any

On the chart below, the listing of a date for any class indicates that the class is
oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available
for all qualified applicants; and "U" means unavailable, i.e., no numbers are
available. (NOTE: Numbers are available only for applicants whose priority date
is earlier than the cut-off date listed below.)

FamilySponsored

All
Chargeability
Areas Except
Those Listed

CHINAmainland
born

INDIA

MEXICO

PHILIPPINES

F1

01MAY07

01MAY07

01MAY07

01JUN94

01AUG04

F2A

01JAN13

01JAN13

01JAN13

22APR12

01JAN13

F2B

01SEP07

01SEP07

01SEP07

15MAY94

01DEC03

F3

15NOV03

15NOV03

15NOV03

15OCT93

22MAY93

F4

01JAN02

01JAN02

01JAN02

22JAN97

15MAR91

*NOTE: For September, F2A numbers EXEMPT from per-country limit are available
to applicants from all countries with priority dates earlier than 22APR12. F2A
numbers SUBJECT to per-country limit are available to applicants chargeable to all
countries EXCEPT MEXICO with priority dates beginning 22APR12 and earlier than
01JAN13. (All F2A numbers provided for MEXICO are exempt from the per-country
limit; there are no F2A numbers for MEXICO subject to per-country limit.)
5. Section 203(b) of the INA prescribes preference classes for allotment of
Employment-based immigrant visas as follows:
EMPLOYMENT-BASED PREFERENCES
First: Priority Workers: 28.6% of the worldwide employment-based preference
level, plus any numbers not required for fourth and fifth preferences.

12

Second: Members of the Professions Holding Advanced Degrees or Persons of

Exceptional Ability: 28.6% of the worldwide employment-based preference level,
plus any numbers not required by first preference.
Third: Skilled Workers, Professionals, and Other Workers: 28.6% of the
worldwide level, plus any numbers not required by first and second preferences,
not more than 10,000 of which to "*Other Workers".
Fourth: Certain Special Immigrants: 7.1% of the worldwide level.
Fifth: Employment Creation: 7.1% of the worldwide level, not less than 3,000
of which reserved for investors in a targeted rural or high-unemployment area,
and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102395.
On the chart below, the listing of a date for any class indicates that the class is
oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available
for all qualified applicants; and "U" means unavailable, i.e., no numbers are
available. (NOTE: Numbers are available only for applicants whose priority date
is earlier than the cut-off date listed below.)

EmploymentBased

All
Chargeability CHINA Areas Except mainland
Those Listed born

INDIA

MEXICO

PHILIPPINES

1st

2nd

08OCT09

01MAY09

3rd

01APR11

01NOV08

08NOV03

01APR11

01APR11

Other Workers

01APR11

22JUL05

08NOV03

01APR11

01APR11

4th

Certain Religious
Workers

5th
Targeted
EmploymentAreas/
Regional Centers
and Pilot Programs

*Employment Third Preference Other Workers Category: Section 203(e) of the

Nicaraguan and Central American Relief Act (NACARA) passed by Congress in
November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that
once the Employment Third Preference Other Worker (EW) cut-off date has
reached the priority date of the latest EW petition approved prior to November 19,
1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up
to 5,000 annually beginning in the following fiscal year. This reduction is to be
made for as long as necessary to offset adjustments under the NACARA

13

program. Since the EW cut-off date reached November 19, 1997 during Fiscal
Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.
6. The Department of State has a recorded message with visa availability
information which can be heard at: (202) 485-7699. This recording is updated
on or about the tenth of each month with information on cut-off dates for the
following month.
VISA AVAILABILITY IN THE COMING MONTHS
INDIA Employment-based Second Preference: The use of potentially "otherwise
unused" Employment numbers prescribed by Section 202(a)(5) of the Immigration
and Nationality Act (INA) has allowed the India Employment Second preference
cut-off date to advance very rapidly in recent months. Continued forward
movement of this cut-off date during the upcoming months cannot be guaranteed,
however, and no assumptions should be made until the dates are formally
announced. Once there is a significant increase in India Employment Second
preference demand it will be necessary to retrogress the cut-off date, possibly as
early as November, to hold number use within the fiscal year 2015 annual limit.
DETERMINATION OF THE NUMERICAL LIMITS ON IMMIGRANTS
REQUIRED UNDER THE TERMS OF THE IMMIGRATION AND
NATIONALITY ACT (INA)
The State Department is required to make a determination of the worldwide
numerical limitations, as outlined in Section 201(c) and (d) of the INA, on an
annual basis. These calculations are based in part on data provided by U.S.
Citizenship and Immigration Services (USCIS) regarding the number of immediate
relative adjustments in the preceding year and the number of aliens paroled into
the United States under Section 212(d)(5) in the second preceding year. Without
this information, it is impossible to make an official determination of the annual
limits. To avoid delays in processing while waiting for the USCIS data, the Visa
Office (VO) bases allocations on the minimum annual limits outlined in Section 201
of the INA. On July 24th, USCIS provided the required data to VO.
The Department of State has determined the Family and Employment preference
numerical limits for FY-2014 in accordance with the terms of Section 201 of the
INA. These numerical limitations for FY-2014 are as follows:
Worldwide Family-Sponsored preference limit:
Worldwide Employment-Based preference limit:

226,000
150,241

Under INA Section 202(A), the per-country limit is fixed at 7% of the family and
employment annual limits. For FY-2014 the per-country limit is 26,337. The
dependent area annual limit is 2%, or 7,525.

OBTAINING THE MONTHLY VISA BULLETIN

To be placed on the Department of States E-mail subscription list for the Visa
Bulletin, please send an E-mail to the following E-mail address:
listserv@calist.state.gov

14

and in the message body type:

Subscribe Visa-Bulletin
(example: Subscribe Visa-Bulletin)
To be removed from the Department of States E-mail subscription list for the
Visa Bulletin, send an e-mail message to the following E-mail address:
listserv@calist.state.gov
and in the message body type: Signoff Visa-Bulletin
The Department of State also has available a recorded message with visa cut-off
dates which can be heard at: (202) 485-7699. The recording is normally
updated on/about the 10th of each month with information on cut-off dates for
the following month.
Readers may submit questions regarding Visa Bulletin related items by E-mail at
the following address:
VISABULLETIN@STATE.GOV
(This address cannot be used to subscribe to the Visa Bulletin.)
Department of State Publication 9514
CA/VO: August 12, 2014

15

Barbara Hines, The University of Texas School of Law Austin, TX

TAB 02

Immigration Agencies and Basic Terms

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M. Elizabeth "Liz" Cedillo-Pereira, Cedillo-Pereira &

Associates, PLLC - Dallas, TX
Vanna Slaughter, Catholic Charities of Dallas, Inc. - Dallas,
TX

TAB 03

Introduction to Family Immigration Practice

IntroductiontoFamilyImmigration
TheUniversityofTexasSchoolofLaw UTLawCLE
38th AnnualImmigrationandNationalityLaw
RadissonHotelandSuitesDowntown
Austin,Texas
October15,2013

M.ElizabethLizCedilloPereira,CedilloPereira&Cedillo,PLLC,Dallas,TX
VannaSlaughter,CatholicCharitiesofDallas,Inc.,Dallas,TX

ObjectivesofSession

IntroductoryConcepts
IntroductiontoFamilyBasedImmigration
AdjustmentofStatus
ConsularProcessing
CriticalConsiderationsforSuccessfulFamily
BasedImmigrationCases
ConcludingThoughts

FamilyImmigration=TheCornerstoneof
USImmigrationLaw
AllowsU.S.citizensandlawfulpermanentresidentstoapplyforcertainrelativesto
becomelawfulpermanentsintheU.S.

FY2012&FY2013LawfulPermanent
ResidentsAdmittedtoU.S.
FY2012 %
FamilyBased
680,79966%
EmploymentBased
143,99814%
Refugees/Asylees
150,61414%
DiversityVisa
40,320 4%
CancellationofRemoval6,818 .7%
Other
9,082 .8%
Total
1,031,631 100%

FY2013 %
649,76366%
161,11016%
119,63012%
45,6185%
5,763.6%
8,669 .9%
990,553100%

Source:Table7,2012YearbookofImmigrationStatistics,DepartmentofHomelandSecurity
Source:Table7,2012YearbookofImmigrationStatistics,DepartmentofHomelandSecurity

FAMILYBASEDPROCESS
Part1
USCorLPRfilesrelativepetition(formI130)
showingstatusasUSCorLPRandrelationshipto
familymember
USCorLPRispetitionerandfamilymemberis
beneficiary

Part2
Familymemberseekingstatusfilesapplicationfor
residency:adjustmentofstatusorconsular
processing
Familymemberisapplicant

WhoCanPetitionforWhom?
USCitizensmaypetitionfor:

Spouse
Minorunmarriedchild
Parent
Adultunmarriedchild
Adultmarriedchild
Sibling

LPRsmaypetitionfor:
Spouse
Minorunmarriedchild
Adultunmarriedchild

FamilyBasedClassifications
&WhyTheyMatter
ImmediateRelative
SpouseofUSC
UnmarriedminorchildofUSC
ParentofadultUSC

NoWaitingPeriod.

PreferenceSystem

1st:Adultunmarriedsonordaughter
ofUSC
2A:SpouseofLPR
MinorunmarriedchildofLPR
2B:Adultunmarriedsonordaughter
ofLPR
3rd:Marriedadultsonordaughterof
USC
4th:SiblingofadultUSC
AlmostAlwaysaWaitingPeriod.
Preferencevisaavailabilityissubjecttoannual
limitsbasedonpreferencecategoryandby
country.Manycountrieshavesignificant
backlogsforvariouspreferencecategories.

WAITINGPERIODS
WHEREISYOURPLACEINLINE?
Informationneededtodeterminewaitingperiod:
PriorityDate=datepetitionfiledwithUSCIS(foundonreceiptformI797)
CountryofChargeability
StateDepartmentVisaBulletinwww.travel.state.gov

WheretoFindaPriorityDate

STATEDEPARTMENT
VISABULLETIN
VisaBulletinforOctober2014

VisaBulletinforSeptember2014

Family
Sponsored

All
CHINA
Chargeability
mainland INDIA
AreasExcept
born
ThoseListed

All
MEXICO

PHILIPPINES

Chargeability
Family
Sponsored AreasExcept
ThoseListed

CHINA
mainland INDIA
born

MEXICO

PHILIPPINES

F 1st Pref. 01MAY07

01MAY07

01MAY07

01JUN94

01AUG04

F 1st Pref. 22MAY07

22MAY07 22MAY07 22JUN94

01SEP04

F2APref. 01JAN13

01JAN13

01JAN13

22APR12

01JAN13

F2APref. 01FEB13

01FEB13

01FEB13

F2BPref. 01SEP07

01SEP07

01SEP07

15MAY94

01DEC03

F2BPref. 01NOV07

01NOV07 01NOV07 01AUG94 15DEC03

F3rd

15NOV03

15NOV03

15OCT93

22MAY93

F3rd Pref. 01DEC03

01DEC03

01DEC03

22OCT93

01JUN93

01JAN02

01JAN02

22JAN97

15MAR91

F4th Pref. 22JAN02

22JAN02

22JAN02

01FEB97

08APR91

Pref. 15NOV03

F4th Pref. 01JAN02

01FEB13

22JUL12

VISAAVAILABILITY
First,determineprioritydate
Second,confirmpreferencecategory
LookatVisaBulletintoseeifvisaisavailableor
prioritydatecurrent
PrioritydatemustbeBEFOREdateonVisa
Bulletin
VisaBulletindoesnotprogressinsteadyand
predictableway
Canretrogress

FAMILYBASEDIMMIGRATION
INACTION
Veronica,aUSC,filedapetitionforherunmarriedadult
daughter,Teresa,fromMexico,onSeptember15,1993.
Thisisa_______preferencepetition._________is
petitionerand__________isbeneficiary.

TheI130petitionwasapprovedandTeresasprioritydate
isSeptember15,1993.CanTeresabeginStep2ofthe
visaapplicationprocessinSeptember2013?
October2013?

DerivativeBeneficiaries
OnlyavailableforthePreferencecategories
NotavailableforImmediateRelativepetitions
Availableto:
Unmarriedchildren(under21)ofprincipalbeneficiary

Spouseofprincipalbeneficiary

NoseparateI130needed

WHOISASPOUSE?
Marriagemustbelegalinjurisdictionwhereittookplace
Cannotbepolygamous
Cannotbeproxy
CanbesamesexUnitedStatesv.Windsor,133S.Ct2675(2013)
Mustbebonafide notshammarriagejustforpurposes
ofimmigration

CONDITIONALRESIDENCY

Immigratewithin2yearsofmarriage
ConditionalLPR
LPRstatusexpiresin2years
Musttakestepstoremovecondition:fileI751
beforestatusexpires
Affectschildren,too

WHOISACHILD?
INASection101(b)defineschildforimmigration
purposes unmarried,underage21.Includes
stepchildren,adoptedchildren,childrenbornoutof
wedlock
Cansomeoneovertheageof21stillbeconsidereda
childforimmigrationpurposes?

WHENACHILDTURNS21
CHILDSTATUSPROTECTIONACT(CSPA)
Coreconcepts:
Turning21doesntalwaysmeanyoustop
beingachildunderimmigrationlaw
Onceanimmediaterelative,alwaysan
immediaterelative
F2Aandderivativechildrenmayalsoretain
childstatusafterturning21

CSPAINANUTSHELL:
F2AsANDDERIVATIVES
ChildofLPRstaysinF2Acategoryifunder21,
accordingtoadjustedageondatevisabecomes
current
Adjustedage=biologicalageminustimeI130was
pendingatServiceCenter
OneyeartofileforLPRstatus
Sameforderivativechildreninallpreference
categories
CSPAisveryimportanttounderstand,butbeyond
scopeofthistopic.

APPLYINGFORRESIDENCY

AdjustmentofStatus:personsin
USwhoqualifytoapplyhere.
ApplywithCISinUS.
NoneedtoleaveUS

ConsularProcessing:forpersons
abroadorwhoareinU.S.but
dontqualifytoapplyfor
residencyhereandhaveto
depart.ApplywithU.S.Consulate
abroad

ADJUSTMENTOFSTATUS
Twostatutorydoorwaystoeligibilitytoadjuststatus.
DOORWAY#1:INA 245(a)

DOORWAY#2:INA 245i

Inspectedandadmittedor
paroledorapprovedVAWAself
petitioner
IRorcurrentPriorityDate
Didntworkw/oauthorization
andalwaysinlawfulstatus
(exceptforIRs)

Eligibletoadjusteventhough:
enteredwithoutinspectionOR
enteredwithinspectionbut
violatedoroverstayedstatus,and
notimmigratinginIRcategory

ADJUSTUNDERINA245(a)?
LaCatrina

Frida

Catrina hasanapprovedvisa
petitionandenteredU.S.with
touristvisa.

Frida ismarriedtoaUSCand
wantstoapplyforresidency.
SheisintheUSonaF1valid
studentvisa.

Cansheadjuststatusunder
245(a)?Whatelsedoyou
needtoknow?

Doesshequalifyforadjustment
under245(a)?

245(i)HISTORY&Grandfathering
First245(i)period:Oct.1,1994toJan.14,1998
Second,underLIFEAct,245(i)eligibleifpetitionfiled
betweenJan.15,1998andApril30,2001,and
principalbeneficiarypresentinU.S.onDec.21,2000
Thirdwaytoinvoke245(i),isthroughgrandfather
provision

GrandfatheringPrinciples
245(i)stayswiththenoncitizen,notthepetition
Ifever245(i)status,canuseinfuture
Appliesifwerederivativebeneficiaryonorbefore
4/30/01
IfeligiblecanbeinvokedbasedonsubsequentI130
Mayonlybeusedonetime

GrandfatherProvisionfor245(i)
Beneficiaries(incl derivatives)ofapprovable
petitionsfiledbythe245(i)deadlinecanuse245(i)
toadjuststatuslater,evenbasedonadifferent
petition.

Approvablewhenfiled=
FiledProperly
Meritorious
Notfraudulent
Whenfiled,claimedrelationshiptosupportfilingreallyexisted

CONSULARPROCESSING
ProcedureforobtainingimmigrantvisaatU.S.
consulateabroad
Forbeneficiarieslivingabroadorunableto
adjuststatusinU.S.
DepartmentofState(DOS)rulesand
regulations ForeignAffairsManual(FAM)

ConsularProcessingStages
NationalVisaCenter(NVC)inPortsmouth,NH
managesconsularcasesafterUSCISapprovesI130
Whenprioritydateclosetocurrent,NVCbegins
process
NVCcollectsrequiredfees
NVCinvolvedindocumentcollectionandreviewfor
allconsularposts
NVCschedulesinterview

PreparingYourClientforthe
ConsularVisaAppointment

Reviewalldocumentsandapplications
Screenagainforpossibleinadmissibility
Prepareforwaiverifnecessary
Describeprocessandwaitingtime,includinglocal
logistics
Determinehowclientwillcommunicatewithyou
Advisetotelltruth,berespectful
Obtainnameofconsularofficialifrefused
Avoidpredatorsaroundconsulatecompound

WHATMAYHAPPEN
Ifapproved,sixmonthstoenteratportofentry
Ifrefused,obtainadditionaldocumentsorfile
waivers
Oneyeartofileevidence
Ifrefused,contactconsulateaboutthe
application;emailoftenbest
Canseekinterventionoradvisoryopinionfrom
StateDept.incasesoflegalerrorbyconsulate
Seekhelpfromcongressionalrepresentative

CriticalConsiderationsforSuccessful
FamilyBasedImmigrationCases
Dualrepresentationramifications
Scopeofrepresentation
Carefullywrittenclientcontract
ComprehensiveclientintakeforBeneficiaryandPetitioner
Writtenandverbalinstructionsregardingrequirements
Writtenandverbalinstructionsregardingtimelinesandfees
Explainrisksandpotentialconsequences
Developpartnershipoftrustwithclient
Maintaindetailedrecordsofallclientencounters,conversations,strategy
discussionsandallactionstakenincase
Neverguaranteesuccessfulcaseoutcome.Therearemanyfactorsover
whichyouhavenocontrol.

ConcludingThoughts

THE UNIVERSITY OF TEXAS SCHOOL OF LAW

Presented:
Fundamentals of Immigration and Nationality Law
October 15, 2014
Austin, Texas

Introduction to Family Immigration Practice

M. Elizabeth Cedillo-Pereira
and
Vanna Slaughter

Continuing Legal Education 512-475-6700 www.utcle.org

Copyright 2013, American Immigration Lawyers Association. Reprinted, with permission, from Immigration Law & The Family (3rd Edition), AILA Publications, agora.aila.org.

CHAPTER 1

FAMILY-BASED IMMIGRATION: IMMEDIATE RELATIVES

AND THE PREFERENCE SYSTEM
Historically, family reunification has been the principal policy underlying U.S.
immigration law. Family-based immigration allows close relatives of U.S. citizens
and lawful permanent residents (LPRs) (legal immigrants) to immigrate to the United
States. 1 Proof of LPR status is the Form I-551, Permanent Resident Card, commonly
called a green card. Family members immigrate either as immediate relatives of
U.S. citizens or through the family preference system.
Immediate Relatives
Immediate relatives include spouses of U.S. citizens, unmarried minor children of
U.S. citizens, and parents of U.S. citizens age 21 or older. 2 The benefit of immigrating as an immediate relative is that there is no cap, or quota, on the number of visas
available each year.
The Family Preference System
The family preference system allows the following persons to immigrate:

Adult children (unmarried and married) of U.S. citizens;

Brothers and sisters of U.S. citizens age 21 or older; and

Spouses and unmarried children (both minor and adult) of LPRs. 3

A limited number of visas are available every year under the family preference
system.
Legal immigration to the United States is controlled by numerical limitations
called quotas, which are applied to the family-based category and to the overall number of immigrant (permanent resident) visas distributed per country, per year. 4 Backlogs develop because there are more applicants in some countries and categories than
there are visas. There are also the non-quota immigrants, such as immediate relatives,
who are exempted from the yearly limitations.

A legal immigrant is a foreign-born individual who has been admitted to reside in the United States as
a lawful permanent resident. Immigration and Nationality Act (INA) 101(a)(20).
2
INA 201(b)(2)(A)(i).
3
INA 203(a).
4
INA 201(c).

1
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IMMIGRATION LAW & THE FAMILY, 3RD ED.

U.S. consulates abroad issue immigrant visas. 5 In addition, U.S. Citizenship and
Immigration Services (USCIS) (successor to the Immigration and Naturalization Service [INS]) or the Executive Office for Immigration Review may adjust an applicants status to LPR in the United States. 6 Whether applicants for immigrant visas are
eligible to adjust status or must go through the consular process depends on several
factors, including whether they made a lawful entry to the United States, whether
they violated the terms of their nonimmigrant visa, when they filed the alien relative
petition, and whether they are immigrating as an immediate relative or through the
preference system. 7
All citizens or LPRs who wish to petition for a family member must have an income
of at least 125 percent of the federal poverty level and must execute a legally enforceable affidavit in which they agree to support their family member. If this is not feasible,
they will have to secure the assistance of a joint sponsor. 8
Requirements for Family Relationships
Many of the terms used in defining eligibility for a family-based visa are technical
and are set forth in the statute and regulations. The following are the most important
terms and requirements:
Petitionerthe family member who is either a U.S. citizen or an LPR. 9 However, some family members may self-petition, such as widows/widowers, battered spouses and children of U.S. citizens and LPRs, certain Amerasian children, and special immigrant juveniles. 10
Beneficiarythe alien seeking permanent resident status who is related to the
U.S. citizen or LPR petitioner. 11 The beneficiary could be a principal (on
whose behalf the alien relative petition is filed) or a derivative (spouse or unmarried child of the principal beneficiary in the preference categories).
Spousethe spousal relationship must be legally valid and recognized in the
place where the relationship was created. 12 It must not be a sham marriage, i.e.,
one entered into for immigration purposes. There is a presumption that the marriage is a sham if the couple gets divorced within two years of obtaining LPR
status based on the marriage. In addition, even if the marriage is valid in the
foreign country, it must not violate federal or state public policy. Same-sex, po5

INA 221, 222.

INA 245.
7
INA 245(a), (i).
8
INA 213A.
9
INA 204(a).
10
8 Code of Federal Regulations (CFR) 204.1(a)(1)(5).
11
8 CFR 204.1(a).
12
See Matter of Bautista, 16 I&N Dec. 602 (BIA 1978).
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lygamous, incestuous, and proxy marriages (unless later consummated) are not
recognized for immigration purposes. 13 Some states recognize common-law
marriages. The marriage must be in existencei.e., not legally terminatedat
the time the permanent residency application is adjudicated, although the marriage need not be viable. 14 If the parties are separated, more proof will be required to demonstrate that the marriage was valid at the time it was entered. If
the parties married while the beneficiary was in immigration proceedings, they
will have to establish through clear and convincing evidence that the marriage
is bona fide. 15
Parentmust meet the definition in the statute, Immigration and Nationality
Act (INA) 101(b)(2), and may include a stepparent, an adoptive parent, and a
parent of child born out of wedlock (though the applicant may have to establish
the parent-child relationship by blood tests, evidence of cohabitation, support, and communication). 16
Brother or sistereach sibling must show that he or she is are the child of at
least one common parent. 17
Childmust meet definition in the statute, INA 101(b)(1), and must be unmarried and under 21; son or daughter refers to children of any age.
Legitimacya child who was born in wedlock 18 or was legitimized before
age 18 while in the fathers custody is a child for immigration purposes.19
Marriage of the natural parents is the most common form of legitimation.
Children born out of wedlock may obtain immigration benefits from the
natural mother. 20 Or they may obtain it from the natural father, so long as
they have established a bona fide parent-child relationship, i.e., cohabitation and provision of support, before age 21. 21
Stepchildreneligible to immigrate through stepparent if child was under
18 at the time of the marriage creating the relationship. 22 It is irrelevant
whether the stepchild was born in wedlock or out of wedlock. The stepchild
relationship may continue even after the natural parent dies or divorces the
13

INA 101(a)(35).
See Matter of McKee, 17 I&N Dec. 332 (BIA 1980).
15
INA 245(e)(3).
16
8 CFR 204.2(c).
17
See Matter of Mahal, 12 I&N Dec. 409 (BIA 1967).
18
INA 101(b)(1)(A).
19
INA 101(b)(1)(C).
20
INA 101(b)(1)(D).
21
See Matter of Vizcaino, 19 I&N Dec. 644 (BIA 1988).
22
INA 101(b)(1)(B).
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IMMIGRATION LAW & THE FAMILY, 3RD ED.

stepparent, provided the stepparent has maintained active parental interest.23

Stepchildren may also serve as petitioners and help their stepparents to immigrate to the United States.
Adopted childreneligible to immigrate if adopted before age 16 and have
been in the legal custody of, and resided with, the adoptive parent for at least
two years. 24 The two years can be counted in the aggregate. The adoption
must be legally valid in the jurisdiction where it took place. 25 Natural siblings
of the adopted child are also eligible to immigrate if adopted while under 18
by the same adoptive parent. 26 Adoptions are also available under the Intercountry Adoption Act of 2000, 27 which the United States enacted to comply
with its obligations under the Hague Convention. 28 U.S. citizens seeking to
adopt and emigrate a child from one of the convention member countries
must satisfy certain requirements. 29 The immigration procedure for an adopted child pursuant to the Hague Convention is covered in chapter 2.
Orphansa U.S. citizen can sponsor an orphan under age 16 if legal requirements are met under INA 101(b)(1)(F). Both parents must have died,
disappeared, or abandoned the child. If there is a sole or surviving parent, he
or she must be incapable of providing for the child and irrevocably release
the child for emigration or adoption. 30 The child must be under 16 and unmarried at the time the petition is filed on his or her behalf to qualify as an
immediate relative. The petitioner must be a U.S. citizen. Natural siblings of
the orphan are also eligible to immigrate if adopted abroad while under 18
by the same adoptive parent.
Unmarriednot married at the time the I-130 petition was filed, at the time the
application for the immigrant visa was filed, and at the time of admission to the
United States as the unmarried son or daughter of a U.S. citizen or LPR,
whether or not previously married. If immigrating as the beneficiary of a second-preference petition, the person must be unmarried from the filing of the pe-

23

See Matter of Mowrer, 17 I&N Dec. 613 (BIA 1981).

INA 101(b)(1)(E).
25
8 CFR 204.2(d)(2)(vii)(C).
26
INA 101(b)(1)(E).
27
Pub. L. No. 106-279, 114 Stat. 825 (Oct. 6, 2000).
28
Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29,
1993, S. Treaty Doc. 105-51 (1998), 32 I.L.M. 1139. For in-depth guidance on international adoption
issues, see The International Adoption Sourcebook (AILA 2008); visit http://agora.aila.org and search
adoption.
29
INA 101(b)(1)(G); 22 CFR 42.24.
30
8 CFR 204.3(d)(1)(iii).
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tition until admission as an LPR. If the beneficiary marries at any time during
that period, the petition is automatically revoked. 31
Immediate Relatives and the Preference System
Immediate Relatives
The term immediate relative includes the following family relationships: spouse,
child (unmarried, under 21), and parent of a U.S. citizen. 32 In the case of a parent, the
U.S. citizen petitioner must be at least 21 years of age. The definition also includes
widows or widowers of U.S. citizens who were not legally separated at the time of
the spouses death, filed an application within two years of the death, and did not remarry before acquiring the immigrant visa or status. 33 Immediate relatives immigrate
outside the numerical restrictions and thus are not subject to the long waiting period
that exists in many of the preference categories. Nevertheless, there is a backlog at
some USCIS service centers in adjudicating the relative petitions and at some USCIS
district offices in scheduling adjustment interviews. This means that even immediate
relatives can expect to wait six months or more to receive their immigrant status.
Preference System
Relatives immigrating through an LPR, as well as some immigrating through a
U.S. citizen, are subject to numerical restriction. The following are the family preference categories:
First: unmarried son or daughter (age 21 or over) of U.S. citizen parent; 34
Second:
F-2A: spouses or unmarried children (under 21) of LPR; 35
F-2B: unmarried sons or daughters age 21 and over of LPR; 36
Third: married sons and daughters of U.S. citizens; 37
Fourth: brothers and sisters of U.S. citizens, where citizen is at least 21. 38
Quota System
Congress has placed a limit on the number of foreign-born individuals who are
admitted to the United States annually as family-based immigrants: 480,000 persons
31

8 CFR 205.1(a)(3)(i)(H), (I).

INA 201(b)(2)(A)(i).
33
INA 204.2(b)(2)(A)(i), as amended by FY2010 Department of Homeland Security Appropriations
Act, Pub. L. No. 111-83, 123 Stat. 2142, 568(c)(1) (Oct. 28, 2009).
34
INA 203(a)(1).
35
INA 203(a)(2)(A).
36
INA 203(a)(2)(B).
37
INA 203(a)(3).
38
INA 203(a)(4).
32

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IMMIGRATION LAW & THE FAMILY, 3RD ED.

per year. 39 A formula that imposes a cap on every family-based immigration category, with the exception of immediate relatives (spouses, minor unmarried children,
and parents of U.S. citizens) governs family-based immigration. The formula allows
unused employment-based immigration visas in one year to be dedicated to familybased immigration the following year, and unused family-based immigration visas in
one year to be added to the cap the next year. This formula means that there are slight
variations from year to year in family-based immigration. Because of the numerical
cap, there are long waiting periods to obtain a visa in most of the family-based immigrant categories. 40
There is no numerical cap on the number of immediate relatives admitted annually
to the United States as immigrants. 41 However, the number of immediate relatives is
subtracted from the 480,000 cap on family-based immigration to determine the number of other family-based immigrants to be admitted in the following year. 42 But no
fewer than 226,000 visas are available each year. 43
The following are the number of visas available in each of the four family-based
preference categories:
First preference (unmarried sons and daughters of U.S. citizen)23,400 visas
per year, plus any visas left over from the fourth preference; 44
Second preference (F-2A) (spouses and minor children of LPR)87,900 visas
per year, plus any visas left over from the first preference; 45
Second preference (F-2B) (unmarried adult children of LPR)26,300 visas per
year, plus any visas left over from the first preference;
Third preference (married adult children of U.S. citizen)23,400 visas per
year, plus any visas left over from the first and second preferences; 46
Fourth preference (brothers and sisters of U.S. citizen over 21)65,000 visas/year, plus any visas left over from the previous preferences. 47
The primary source of information on visa availability is the Visa Bulletin, available from the U.S. Department of State, Bureau of Consular Affairs, Visa Services,

39

INA 201(c)(1)(A)(i).
INA 202(e).
41
INA 201(b).
42
INA 201(c)(1)(A).
43
INA 201(c)(1)(B)(ii).
44
INA 203(a)(1).
45
INA 203(a)(2)(B).
46
INA 203(a)(3).
47
INA 203(a)(4).
40

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Washington, D.C. 20520. A copy of visa availability information from the Visa Bulletin for May 2013 is included as Appendix 1A. 48
You will need to become familiar with how to read the Visa Bulletin to determine
how long a particular visa application will take. You must be familiar with the following concepts:
Priority dateUnder the quota system, family-based immigrant visas are distributed on a chronological basis, determined by the date on which the alien
relative petition (Form I-130, Petition for Alien Relative) was properly filed
with USCIS. That filing date becomes the priority date. 49 To be properly
filed, the application must be completed, signed, and submitted with the appropriate filing fee. 50
The priority date may or may not be current, i.e., a visa is available; if the
priority date is not current, it is possible to estimate how long it will be before
the priority date becomes current and a visa becomes available. Compare the
priority date with the date indicated in the most recent monthly Visa Bulletin,
taking into consideration the particular preference category and the aliens
country of origin. The priority date must be before the date on the Visa Bulletin
to be considered current. For example, a Mexican LPR who is sponsoring his
spouse in the F-2A visa category will look at the most recent Visa Bulletin for
that preference category under the column for Mexico. In December 2012, the
date on the Visa Bulletin for that category and nationality was August 1, 2010.
Only applicants who filed the Form I-130 before that date are considered current.
Cross-ChargeabilityIf the principal and derivative beneficiaries were born in
different countries, it may be possible to apply cross-chargeability principles.
Visas are usually chargeable to the country of the beneficiarys place of birth.51
But a basic tenet of family-based immigration is maintaining the family intact.
If one family member was charged to a country that is oversubscribed, while
the other family members in the same preference category were charged to
countries that are current, this would result in separation and undue hardship.
To remedy this potential problem, the law allows in some situations for the
family to elect whichever foreign state is more beneficial. The law seems to
48

You can request to be sent the Visa Bulletin by e-mail; send your request to listserv@calist.state.gov.
In the body of the message type subscribe Visa Office Bulletin, followed by your first name and last
name. Alternatively, you may call the State Department for a recording on the status of priority dates,
(202) 663-1541, or visit its website at http://travel.state.gov/visa/bulletin/bulletin_1360.html. Visa Bulletins are also posted to AILAs InfoNet, www.aila.org.
49
8 CFR 204.1(c).
50
8 CFR 204.1(d).
51
INA 202(b).
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limit application of this cross-chargeability, however, to the third and fourthpreference categories and to situations in which it is necessary to prevent the
separation of spouses or separation of children and parents. 52 For example, if a
U.S. citizen is petitioning for his married Mexican son, the son and his Guatemalan spouse can elect to have their visas charged to Guatemala, since the third
preference for Mexicans is backlogged further than for Guatemalans. Similarly,
if a U.S. citizen is sponsoring his Japanese brother, the brothers Filipino wife
would elect to be charged to her husbands country of birth. Their child, who
was born in India, could elect to be charged to either parents country, and in
this example would elect the fathers.
Derivative Beneficiaries
Family members on whose behalf the I-130 petition is filed are considered principal beneficiaries. If they are being petitioned for in one of the preference categories and have minor, unmarried children or a spouse, those other family members also
may qualify to immigrate as derivative beneficiaries. 53 In other words, a derivative
beneficiary is the spouse or unmarried child of a principal beneficiary in the preference category. 54
Derivative beneficiaries, by definition, do not have separate Form I-130 petitions
filed on their behalf. In fact, except for the F-2A preference category, they do not
qualify to have a separate Form I-130 filed on their behalf. If the family member is
immigrating as an immediate relative, he or she must have a separate Form I-130 petition on file. 55
Derivative family members are accorded the same preference status as the principal beneficiary. These derivatives may either accompany the principal beneficiary or
follow-to-join, which means immigrating more than six months after the principal
beneficiary. 56
Retention of Priority Dates
Much can happen between the time the petitioner files an I-130 petition and the
beneficiary adjusts status or immigrates. For example, the beneficiary might marry,
divorce, turn 21, or die. In addition, the petitioner might divorce, naturalize, lose LPR
status, or die. There also might be after-acquired children to consider. Similar events
could happen in the lives of the derivative beneficiaries. When a new Form I-130
needs to be filed, sometimes the beneficiary can retain the original priority date. Let
us review the effects in all of these situations.
52

22 CFR 42.12.
INA 203(d).
54
9 Foreign Affairs Manual (FAM) 42.31 N2.
55
8 CFR 204.2(a)(4).
56
22 CFR 40.1(a)(1).
53

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General Principles. The basic principle is that one can retain an earlier priority
date if the same petitioner is filing for the same beneficiary (including derivative beneficiaries) in the same preference category and the prior I-130 petition was not terminated or revoked. 57 If the Form I-130 was lost or withdrawn and the petitioner wants
to re-file, he or should be able to retain the priority date from the original petition.
Marriage. If the beneficiary is an immediate relative, marrying will move him or
her to the third-preference category. 58 If the beneficiary is already over 21 and started
out in the first-preference category, then he or she also moves into the third preference. 59 There is no need to file a new Form I-130; simply notify the appropriate service center, the National Visa Center (NVC), or the consulate of the automatic conversion to third preference. The priority date for the third-preference visa petition
would be the same as that for the immediate-relative or first-preference petition. 60
This conversion to third preference does not occur if the beneficiary is in the second-preference category. The child/son/daughter of an LPR cannot marry without automatically revoking the I-130 petition. If a second-preference category (F-2A or F-2B)
beneficiary marries before immigrating or adjusting status, the I-130 petition is terminated. 61
Divorce. Divorce tends to work the opposite way from marriage. The thirdpreference beneficiary moves into the immediate-relative category (if under 21) or
the first preference (if over 21). 62 Again, there is no need to file a new Form I-130,
and the priority date remains the same. Inform the appropriate service center, the
NVC, or the consulate of the automatic conversion from third preference to first preference or immediate-relative status and enclose proof of termination of the marriage.
If the second-preference beneficiary divorces, he or she cannot regain the status of
an F-2A or F-2B preference holder because the Form I-130 was automatically revoked. The LPR petitioner must file a new Form I-130 and cannot retain the earlier
priority date. If the beneficiary obtains an annulment, however, that might serve to
reinstate the second-preference status. Courts have determined that an annulment
serves to void the marriage ab initio.
If the U.S. citizen or LPR petitioner is the one to divorce after filing a Form I-130
petition for a spouse, the I-130 petition is automatically revoked. 63 If the petitioner
had filed a Form I-130 for a stepchild based on that marriage, in most cases the di57

8 CFR 204.2(h)(2).
8 CFR 204.2(i)(1)(ii).
59
8 CFR 204.2(i)(1)(i).
60
8 CFR 204.2(i)(1)(i), (ii).
61
8 CFR 205.1(a)(3)(i)(I).
62
8 CFR 204.2(i)(1)(iii).
63
8 CFR 205.1(a)(3)(i)(D).
58

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IMMIGRATION LAW & THE FAMILY, 3RD ED.

vorce severs the relationship and the I-130 petition is revoked. But those stepchildren
who are able to establish an ongoing relationship with the stepparent may be able to
proceed with their petition. 64 Divorce between the principal beneficiary and the derivative spouse in the third or fourth-preference category terminates the derivative
status of the spouse.
Naturalization. When the LPR petitioner naturalizes, principal beneficiaries under 21 convert from the F-2A category to the immediate-relative category. If the beneficiary is already over 21 and in the F-2B category, he or she would convert to the
first preference. There is no need to file a new Form I-130; the priority date remains
the same. 65 Inform the appropriate service center, the NVC, or the consulate of the
automatic conversion from second preference to first preference or immediaterelative status and enclose a copy of the naturalization certificate.
For most beneficiaries, the first preference is more current than the F-2B category.
But check the Visa Bulletin, since that has not been the case for Filipinos for quite a
while, and occasionally it is not the case for Mexicans. The Child Status Protection
Act (CSPA) 66 neutralizes the negative effect that the petitioners naturalizing might
have on these sons and daughters.
Beneficiaries with children, however, no longer will be able to count them as derivatives if they convert to the immediate-relative category when the petitioner naturalizes. 67 Derivative beneficiaries in the F-2A category are most affected, because, as
immediate relatives, they will be required to have a separate I-130 petition filed on
their behalf. When the newly naturalized U.S. citizen petitioner files this separate
I-130 petition for the unmarried child, the beneficiary retains the original priority
date. 68 This is usually irrelevant because, as an immediate relative, the beneficiary is
not subject to any annual quotas and the CSPA freezes the beneficiarys age in many
cases. 69 But if the beneficiary marries before obtaining LPR status, the earlier priority
date might prove helpful. State in the cover letter for the second Form I-130 should
state that petitioner is requesting the original priority date, cite the regulatory authority, and include proof of filing the original Form I-130.

64

Medina-Morales v. Ashcroft, 371 F.3d 520, 53132 (9th Cir. 2004).

8 CFR 204.2(i)(3).
66
Child Status Protection Act (CSPA), Pub. L. No. 107-208, 116 Stat. 927 (Aug. 6, 2002). For in-depth
guidance on the CSPA, see AILAs Focus on the Child Status Protection Act (2008),
http://agora.aila.org, search CSPA. See also, C. Wheeler, Implementation of INA Section 204(l)
Relating to Surviving Family Members, AILAs Inside Immigration (August 2011) also found as Appendix 1D in this volume.
67
9 FAM 42.31 N2.2.
68
8 CFR 204.2(i)(3).
69
INA 201(f).
65

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11

Death of the Petitioner. Death of the petitioner automatically revokes the Form I130, but there is possible relief for widows and widowers of U.S. citizens who have
not remarried and who file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, within two years of the citizens death. 70 The widow or widower adjusts or immigrates as an immediate relative, and unmarried children under 21 are
classified as derivative beneficiaries. The process for self-petitioning as a widow or
widower is covered in more detail in chapter 5.
In addition to the spouses of U.S. citizens, other surviving family members may
continue to receive immigration benefits from a pending or approved Form I-130 after the petitioner has died. 71 If INA 204(l) applies, it acts to nullify the petitioners
or the principal beneficiarys death. The main requirements are that the beneficiary
must have been residing in the United States at the time of the petitioners death and
continue to be residing here. The other requirement is obtaining a substitute sponsor
who can file an affidavit of support.
According to USCIS, there are two ways to request 204(l) relief. If the petitioner
died while the petition or application was pending, the beneficiary will simply notify
USCIS and request that the agency proceed with adjudication of the petition or application. This presumes that the petition or application was filed on or after October 28,
2009, or was pending on that date. If it was filed and adjudicated before that date,
USCIS will allow the affected beneficiary to file an untimely motion to reopen if he
or she would otherwise be protected by the provisions of 204(l). 72 The second manner of requesting relief applies to beneficiaries whose petitioner died after the petition
or application was approved. Assuming the beneficiary satisfies the residency requirements, he or she can request reinstatement of the approved petition or application.
Reinstatement under 204(l) should not be confused with humanitarian reinstatement. Beneficiaries who do not satisfy the residency requirement of 204(l) but
whose petitioner died after the I-130 petition was approved may file to reinstate the
revoked Form I-130 based on humanitarian factors. 73 This procedure is described in
chapter 2. A sample motion to reinstate an I-130 petition based on humanitarian factors, with a list of supporting documents, is attached as Appendix 1B. A sample re-

70

INA 201(b)(2)(A)(i), as amended by FY2010 Department of Homeland Security Appropriations

Act, Pub. L. No. 111-83, 123 Stat. 2142, 568(c)(1), (Oct. 28, 2009).
71
INA 204(l), as amended by FY2010 Department of Homeland Security Appropriations Act, Pub. L.
No. 111-83, 123 Stat. 2142, 568(d)(1), (Oct. 28, 2009).
72
U.S. Citizenship and Immigration Services (USCIS) Policy Memorandum PM-602-0017, Approval
of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of
the Immigration and Nationality Act (Dec. 16, 2010), published on AILA InfoNet at Doc. No.
11011061 (posted Jan. 10, 2011).
73
8 CFR 205.1(a)(3)(i)(C).
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IMMIGRATION LAW & THE FAMILY, 3RD ED.

quest to reinstate an I-130 petition based on 204(l), with a list of supporting documents, is attached as Appendix 1C.
Beneficiaries who can benefit from this 2009 statutory amendment include immediate-relative children and parents of a U.S. citizen and all preference-category principal and derivative beneficiaries in the family-based categories. If the principal beneficiary meets the residence requirements, but the derivatives do not, they may still
qualify for relief. It is not necessary that all of the derivative beneficiaries meet the
residence requirements. According to USCIS, if any one beneficiary of a covered
petition meets the residence requirements of section 204(l) of the Act, then the petition may be approved. 74 So this interpretation helps in cases where the principal
beneficiary satisfies the residence requirements but the spouse and/or children have
been residing abroad.
Section 204(l) also provides relief in situations where the principal beneficiary
not the petitionerhas died. In the past, when the principal beneficiary had died, either the derivatives were left without a basis for immigrating (e.g., derivative children
in first preference cases or derivative spouses and children in third or fourth preference cases), or the petitioner had to file a new petition for the child (second preference cases). The statute now allows these derivatives of the qualifying relative in
all the family-based preference categories to proceed unaffected by the principal beneficiarys death.
The Department of Homeland Security (DHS) retains the power to deny relief under 204(l) when it determines that approval of the petition or application would not
be in the public interest. The exercise of this discretion is non-reviewable. According to USCIS, only truly compelling discretionary factors should be cited as a basis
to deny the visa petition under section 204(l). And before making such a determination, the officer must first consult with headquarters. 75
Section 204(l) does not allow a surviving family member to apply for adjustment
of status if not otherwise eligible. Nor does it require approval of a petition or application if the officer believes the beneficiary or applicant is ineligible. For example,
the officer might determine that there was no good-faith marriage in a marriage-based
case. This statutory amendment does not waive or excuse the grounds of inadmissibility or deportability; it simply allows the petition or application to be adjudicated
notwithstanding the death of the petitioner or principal beneficiary. But the agency
interprets the statute as allowing the grant of a waiver of inadmissibilityeven
though the qualifying relative has died and even though there is obviously no extreme
hardship to be suffered by the decedentif the beneficiary meets the residence re74

USCIS Policy Memorandum PM-602-0017, Approval of Petitions and Applications after the Death
of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act (Dec. 16,
2010), published on AILA InfoNet at Doc. No. 11011061 (posted Jan. 10, 2011).
75
Id.
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13

quirements of 204(l). USCIS will note that the qualifying relative has died and the
death will be deemed to be the functional equivalent of a finding of extreme hardship. This does not mean that the waiver will necessarily be approved. USCIS retains the right to exercise its discretion in adjudicating waivers, even if extreme hardship is established. 76
The affidavit of support requirements are not waived for family-based cases involving a deceased petitionerother than a widow or widowerthough the beneficiary may submit one from a substitute sponsor. Substitute sponsors may include a
close relative of the beneficiary (spouse, parent, mother-in-law, father-in-law, sibling,
child at least 18 years of age, son, daughter, daughter-in-law, son-in-law, sister-inlaw, brother-in-law, grandparent, or grandchild) or a legal guardian. A substitute
sponsor must be either a U.S. citizen or LPR and be domiciled in the United States. If
the sponsor has insufficient income to satisfy the 125 percent of poverty requirement
for their household size, he or she may obtain a joint sponsor who does meet it. Beneficiaries residing in the United States whose petitioning family member has died will
need to file a substitute affidavit of support as part of the adjustment of status or consular processing procedure. Those who are residing abroad and will be moving to reinstate the petition will need to include a substitute affidavit of support with the motion. Beneficiaries residing inside the United States who cannot secure a substitute
sponsor will be unable to proceed with their application for adjustment of status or an
immigrant visa; those residing outside the country will be unable to proceed with
their motion to reinstate.
Death of the spouse/parent usually terminates the stepparentstepchild petition,
except when the parties establish an ongoing relationship.
Age-Out. The CSPA has solved the age-out problem for many beneficiaries. This
will be explained in greater detail later in this chapter. But prior to the CSPA, turning
21 meant (and for those few who cannot take advantage of the law, still means) one
of the following: (1) converting from the immediate-relative to the first-preference
category; (2) converting from F-2A to F-2B; or (3) converting from derivative beneficiary and possibly losing status (derivatives in the F-2A preference category still
convert to F-2B).
Prior to the CSPA, children who were under 21 at the time the Form I-130 was
filed on their behalf by a U.S. citizen parent automatically converted from immediate
relative to the first-preference category upon turning 21. 77 There was no need to file a
separate I-130 petition, nor was there a need to inform the service center, NVC, or
consulate. The beneficiary in the first-preference category retained the same priority
date as that obtained when the I-130 petition was filed as an immediate relative. 78
76

Id.
8 CFR 204.2(i)(2).
78
Id.
77

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Children who were under 21 at the time the Form I-130 was filed on their behalf
by an LPR parent automatically converted from the F-2A category to the F-2B category upon turning 21. 79 There was no need to file a separate Form I-130, nor was
there a need to inform the service center, NVC, or consulate. The beneficiary in the
F-2B category retained the same priority date as that obtained when the Form I-130
was filed in the F-2A category.
Derivative beneficiaries in the second-preference category automatically lost their
derivative status when they turned 21. But if they were the unmarried children of an
LPR parent, they were able to convert from the F-2A to the F-2B category when the
LPR petitioner filed a separate Form I-130 on their behalf. Fortunately, they were
also able to retain the original priority date. 80 However, if they were the children of a
principal beneficiary who was the unmarried child of an LPR, they lost their derivative status upon turning 21. That is because the LPR petitioner cannot petition for his
or her grandchildren.
Derivatives in other preference categories also lost their derivative status when
they turned 21. Unlike the children of LPRs, who converted automatically from the
F-2A to the F-2B category, these sons and daughters did not automatically convert to
another category upon turning 21. They had to start over again after their parent immigrated or adjusted status. The LPR parent then filed a new I-130 petition on their
behalf. Prior to the CSPAand even according to current USCIS interpretation after
implementation of the lawthese former derivative beneficiaries did not retain the
original priority date.
Pre-1977 Western Hemisphere Priority Dates. When Congress changed the
immigration law at the end of 1976 that established the current family-based preference categories for Western Hemisphere immigrants (North America, Central America, South America, and adjacent islands), it allowed pending applicantscalled registrantsto use their old, unused priority dates. 81 It also allowed any derivative
beneficiaries in existence on the date of original filing (registering) to use their unused priority dates for later applications. Derivatives include spouses and unmarried
children under 21 on the date of original filing, as well as children born later from a
marriage that existed on that date. This means that children born after January 1,
1977, can still qualify as derivatives if their parents were married and had filed (registered) before that date. The savings clause in the 1976 legislation allows the beneficiaries and derivatives to use the original date of filing (registering) for later Form I130 applications. Once established, the priority date is retained by the derivatives,

79

9 FAM 42.53 N2.4-2(c).

8 CFR 204.2(a)(4).
81
Immigration and Nationality Act Amendments of 1976, Pub. L. No. 94-571, 90 Stat. 2703; 9 FAM
42.53 N4.1.
80

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even if they subsequently marry or turn 21. The priority date can be used in conjunction with any properly approved visa petition filed on behalf of the alien.
The Child Status Protection Act
The CSPA went into effect on August 6, 2002. Since that date, USCIS and the
Department of State (DOS) have together issued more than a dozen memoranda interpreting the statute and providing detailed information on how it will be implemented. The CSPA will help many children of U.S. citizens immigrate faster than
they would have under the prior law. It provides a more limited form of relief for the
unmarried children of LPRs and derivatives in the preference categories.
Children of U.S. Citizens
The children of U.S. citizens can now preserve the status they held when their parent filed the I-130 petition. If they were immediate relatives on that dateunmarried
and under 21they will still be considered immediate relatives should they turn 21
before they obtain permanent residency. 82 In other words, they will never age out.
Under the prior law, they would have automatically moved into the first-preference
category upon turning 21. The CSPA does not change their status, however, should
they marry before immigrating. In that case, the son or daughter still converts to the
third-preference category. 83
The children of LPR parents who naturalize also are able to take advantage of the
CSPA. If the children are unmarried and under 21 on the date of the petitioning parents naturalization (i.e., they are direct beneficiaries in the second-preference F-2A
category), they then convert to immediate-relative status. They preserve that status if
they subsequently turn 21 before immigrating. 84 Some LPR petitioners filed only one
Form I-130 for their spouse with the intention that their children would immigrate as
derivatives. Keep in mind that when these parents naturalize, they will need to file a
separate I-130 petition for each child, because the children will lose their derivative
status. 85 The current USCIS position is that these children will need a separate Form
I-130 on file before they turn 21 to preserve their immediate-relative status.
The married children of U.S. citizens (i.e., direct beneficiaries in the thirdpreference category) also benefit from the CSPA. If they divorce before turning 21,
they convert to immediate-relative status. They will preserve that status even if they
turn 21 before immigrating, since it is their age at the time of the termination of the
marriage that controls. 86 If they divorce after turning 21, the CSPA does not affect
their statusthey would still convert to the first-preference category.
82

INA 201(f)(1).
8 CFR 204.2(i)(1)(ii).
84
INA 201(f)(2).
85
8 CFR 204.2(a)(4).
86
INA 201(f)(3).
83

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Children of LPRs and Derivatives

The CSPA provides a different form of relief to children of LPR parents who do
not naturalize, and to derivative children in the preference categories. Children in the
second-preference category previously would have converted from the F-2A to the F2B category upon turning 21. Derivative children in the family-preference categories
previously would have lost their derivative status upon turning 21. But under the
CSPA, their age for purposes of determining their preference category and derivative
status will be reduced by the period of time the I-130 petition was pending. 87 In other
words, look at the biological age of the second-preference child, son, or daughter at
the time the F-2A preference category becomes current for the priority date. If they
are over 21, they still might qualify, depending on how long their I-130 petition was
pending.
For example, take the case of an LPR who files a Form I-130 for his son. If
USCIS took one year to approve the I-130 petition, subtract that period from the
sons biological age (or add that period to the sons date of birth) to arrive at his adjusted age. Use the sons adjusted age on the date the second-preference F-2A category becomes current to determine if he is under 21. If he is, he will be considered in
the F-2A category (even though his biological age is over 21) and he will retain that
status, assuming he does not marry.
Such children will preserve their F-2A status provided they seek to acquire lawful
permanent resident status within one year of visa availability. 88 USCIS has defined
that to mean filing for adjustment of status. 89 DOS has defined it to include submitting a completed Form DS-230, Application for Immigrant Visa and Alien Registration, Part 1, or a Form I-824, Application for Action on an Approved Application or
Petition. 90 This latter form is most commonly used by principal beneficiaries who
adjusted status but have derivative family members who will be consular processing.
In a published decision, the Board of Immigration Appeals (BIA) has found that an
alien may satisfy the sought to acquire requirement by filing one of the three applications or by establishing extraordinary circumstances that prevented filing within
the one-year window. Such circumstances might include retaining an immigration

87

INA 203(h)(1).
INA 203(h)(1)(A).
89
Legacy Immigration and Naturalization Service (INS) Memorandum, J. Williams, The Child Status
Protection ActMemorandum Number 2 (Feb. 14, 2003), published on AILA InfoNet at Doc. No.
03031040 (posted Mar. 10, 2003), replaced by USCIS Memorandum, D. Neufeld, Revised Guidance
for the Child Status Protection Act (CSPA) (May 6, 2008), published on AILA InfoNet at Doc. No.
08050669 (posted May 6, 2008).
90
Child Status Protection Act of 2002: ALDAC #2, State 015049 (Jan. 2003), published on AILA InfoNet at Doc. No. 03020550 (posted Feb. 5, 2003).
88

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attorney and completing the application within the one-year period, but then having
the attorney unnecessarily delay the filing. 91
The same age-adjusting principle applies for derivative beneficiaries. 92 Look at the
date that the principal beneficiarys priority date becomes current. If the derivative
beneficiary is under 21 using his or her adjusted age, then he or she retains derivative
status, even if he or she subsequently turns 21.
For example, take the case of a U.S. citizen who files a third-preference petition
for his married son. The sons wife and minor daughter are derivatives. When the
daughter turns 21, she loses derivative status, and the only way for her to immigrate
is through a separate petition filed by her father or mother after they immigrate. But
use the derivative childs adjusted age (biological age minus the time the I-130 petition was pending) on the date the third-preference visa became current to determine if
the child retains derivative status. To preserve derivative status, the child must seek to
adjust status or consular process within one year.
To determine the adjusted age, it will be necessary to know the priority date and
the date on the Form I-797 approval notice. It also will be necessary to know when
the F-2A categoryor other family or employment-preference category for derivativesfirst became current for the specific priority date. The date that a visa number
becomes available is the first day of the month in which the Visa Bulletin indicates
availability of a visa for that preference category. 93
The CSPA codifies prior policy when a beneficiary ages out from the F-2A into
the F-2B category. It now formally states that the aliens petition shall automatically
be converted to the appropriate category and the alien shall retain the original priority
date issued upon receipt of the original petition. 94 Although, on its face, it appears
that the petitioner does not need to file a separate Form I-130, this is currently not the
USCIS position; USCIS still mandates the filing of a separate petition. But the F-2B
category beneficiary retains the original priority date.
Practitioners have argued that this conversion and retention language should apply
to derivatives in all of the other family-based preference categories, and that they
should automatically convert to the F-2B category upon aging out of derivative status. For example, a third or fourth-preference derivative child, upon aging out,
should be able to retain the original priority date when the principal beneficiary immigrates and files a separate petition in the F-2B category. At the present time, however, USCIS does not agree with this interpretation and the BIA has similarly rejected

91

Matter of O. Vasquez, 25 I&N Dec. 817 (BIA 2012).

INA 203(h)(2)(B).
93
Visa Bulletins dating back to February 1995 can be accessed at http://travel.state.gov/visa/
bulletin/bulletin_1770.html.
94
INA 203(h)(3).
92

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IMMIGRATION LAW & THE FAMILY, 3RD ED.

it. 95 Nevertheless, two courts of appeal have agreed with this interpretation, 96 while
one court of appeals has rejected it. 97 Practitioners must wait until the government
decides if it will appeal the recent U.S. Court of Appeals for the Ninth Circuit decision
by filing a writ of certiorari to the U.S. Supreme Court. If it does, and if the Court
grants the writ, it will be another year until this issue is resolved.
Relief for Filipinos
Based on current demand, the first-preference category is now backlogged much
further than the second-preference F-2B category for beneficiaries from the Philippines. Therefore, when their parents naturalized, and these sons and daughters over
21 converted from F-2B to first preference, they actually extended the time they had
to wait for their visa to become current. The CSPA eliminates this disparity and penalty by allowing these beneficiaries to elect whether they want to convert automatically to the first preference or opt out and stay in the F-2B category. 98 Applicants for
adjustment of status should write a simple letter attached to their application serving
as notice of this election. 99 Beneficiaries residing abroad will need to submit a similar
statement when consular processing, but this formal election will have to be sent to
and acknowledged by DHS before the consulate proceeds with the immigrant visa
application. Of course, if the children were under 21 when the parent naturalized,
then they became immediate relatives and would not need to make this special election. The provision applies to petitioners who naturalized before, on, or after the effective date of the CSPA.
This same opt-out option is not available for children over 21 who are still in the
F-2A category based on their CSPA or adjusted age. The first preference is backlogged further for all nationalities, and therefore it would advantageous for those persons to remain in the F-2A category when their petitioning parent naturalizes. Unfortunately, BIA has held that that option is only available for those in the F-2B
category. 100
Effective Date
At the time of passage, the CSPA potentially affected thousands of cases pending
before USCIS and DOS. Section 8 of the CSPA states unequivocally that the new law
applies to I-130 petitions, adjustment of status applications, and immigrant visa applications pending before the agencies on August 6, 2002. It also applies to I-130 petitions approved before August 6, 2002, provided no final determination had been
95

Matter of Wang, 25 I&N Dec. 28 (BIA 2009).

Osorio v. Mayorkas, 695 F.3d 1003 (9th Cir. 2012); Khalid v. Holder, 655 F.3d 363 (5th Cir. 2011).
97
Li v. Renaud, 654 F.3d 376 (2d Cir. 2011).
98
INA 204(k).
99
INA 204(k)(2).
100
Matter of Zamora-Molina, 25 I&N Dec. 606 (BIA 2011).
96

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19

made on the subsequent adjustment or immigrant visa application. USCIS and DOS
originally took the position that the CSPA required the filing of an application for
adjustment of status or an immigrant visa prior to August 6, 2002, for those children
who had approved I-130 petitions but who turned 21 before August 6, 2002. In other
words, the agencies position was that if such children did not have an application or
petition pending on that date, the CSPA did not apply. But after a precedent BIA decision held that the CSPA applied retroactively, 101 the agencies reversed their prior
positions. 102 Now, according to the agencies, as long as the child had not received a
final denial on an application by August 6, 2002, the CSPA principles will apply.
Authority
Statutes
The following statutory cites provide legal authority for the issues discussed
above:
INA 201the immigrant-visa selection system;
INA 202numerical limitations and distribution of second-preference visas;
and
INA 203family-based preferences and order of consideration.
Regulations
The following regulatory citations provide legal authority for the issues discussed
above:
8 Code of Federal Regulations (CFR) 204.1substantive basis for immediate-relative and family-preference petitions; evidentiary and documentary requirements;
8 CFR 204.2elements to be proven and the documentation to be submitted
to establish each type of family relationship;
22 CFR 40.1definition of terms; and
22 CFR Part 42documentary requirements.
Agency Guidelines
The following guidelines provide additional authority for the issues discussed
above:
USCIS Adjudicators Field Manual (AFM)a comprehensive how to manual detailing policies and procedures for all aspects of the adjudications program. USCIS employees follow these detailed procedures and the agencys interpretation of the law when adjudicating petitions and applications. The AFM
101

Matter of Avila-Perez, 24 I&N Dec. 78 (BIA 2007).

USCIS Memorandum, D. Neufeld, Revised Guidance for the Child Status Protection Act (CSPA)
(May 6, 2008), published on AILA InfoNet at Doc. No. 08050669 (posted May 6, 2008).

102

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IMMIGRATION LAW & THE FAMILY, 3RD ED.

is available at www.uscis.gov (Laws tab, link to Handbooks and guides). See

also Ailalink to access relevant portions of the AFM (visit www.ailalink.org for
more information on how to subscribe to this service).
Foreign Affairs Manual (FAM)provides guidance and interpretation of regulations for DOS officials. The FAM defines qualifying relationships, provides
guidelines regarding immigrant visas, and availability of foreign documents.
The portions relating to immigrant visas are located in volume 9. 103

103

Portions of the FAM are available at www.state.gov/m/a/dir/regs/fam/09fam/index.htm. See also

AILALink to access FAM volumes 7 and 9 (visit http://agora.aila.org/ailalink for more information on
how to subscribe to this service).
Copyright 2013. American Immigration Lawyers Association.

Copyright 2013, American Immigration Lawyers Association. Reprinted, with permission, from Immigration Law & The Family (3rd Edition), AILA Publications, agora.aila.org.

CHAPTER 2

OVERVIEW OF THE APPLICATION PROCESS FOR

PERMANENT RESIDENCE
An application for lawful permanent resident (LPR) status for a foreign national
begins with the filing of Form I-130, Petition for Alien Relative, and supporting documentation with U.S. Citizenship and Immigration Services (USCIS). There may be
as many as four steps: filing the petition, a marriage interview (if the petition is marriage based), adjustment of status or consular processing, and inspection and admission by U.S. Customs and Border Protection (CBP). The rules that implement the
Intercountry Adoption Act of 2000 1 also apply if the petitioner is applying on behalf
of an adopted child. 2
First Step: Filing the Petition for Alien Relative (Form I-130)
Form I-130 and its supporting documentation establish that the petitioner is a U.S.
citizen, an LPR, or a U.S. national, and that the claimed relationship to the foreignnational beneficiary is a legally qualifying one. 3 When USCIS adjudicates the petition, it must verify the status of the petitioner and the validity of the relationship. The
agency is not screening for potential inadmissibility or eligibility for adjustment of
status; that occurs should the applicant file a separate form and seek that immigration
benefit. For purposes of completing the Form I-130, the petitioner, or, more precisely, the you indicated in the form, is the U.S. citizen, LPR, or U.S. national who is
petitioning for the foreign national relative. The intending immigrant is the beneficiary.
Who May File a Form I-130 Petition?
As was explained in chapter 1, immediate relatives are defined as the spouse,
parents, and unmarried children (under age 21) of U.S. citizens. 4 All other qualifying
relationships fall within the preference categories. 5 These include the siblings, unmarried sons and daughters (over age 21), and married children or sons and daughters
1

Pub. L. No. 106-279, 114 Stat. 825 (Oct. 6, 2000).

Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29,
1993, S. Treaty Doc. 105-51 (1998), 32 I.L.M. 1139, was enacted to comply with obligations under the
Hague Convention. For in-depth guidance on international adoption issues, see The International Adoption Sourcebook (AILA 2008), http://agora.aila.org, search for adoption.
3
8 Code of Federal Regulations (CFR) 204.1(a)(1).
4
Immigration and Nationality Act (INA) 201(b)(2)(A)(i).
5
INA 203(a).
2

39
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IMMIGRATION LAW & THE FAMILY, 3RD ED.

of U.S. citizens. They also include the spouses and unmarried children or sons and
daughters of an LPR.
Different rules apply for family dependents, or derivative beneficiaries. This includes the spouse and unmarried children under 21 of the principal beneficiary in the
preference categories. In these cases, the derivative beneficiaries may immigrate
without the need to file a separate Form I-130 petition, provided they have that relationship at the time the principal beneficiary immigrates and at the time that they
immigrate. 6 Derivative relationships include the spouses of the principal beneficiary
immigrating through the third and fourth-preference categories. Unmarried children
under 21 may immigrate as derivatives of the principal beneficiary in the first, second, third, and fourth-preference categories.
In most cases, the petitioner is not able to file a separate I-130 petition on the derivatives behalf. For example, a U.S. citizen may not file a separate I-130 petition
for the spouse and children of a married child in the third-preference category or the
spouse and children of a sibling in the fourth-preference category. Only when an LPR
is petitioning for his or her spouse does he or she have the option of including the
unmarried children under 21 as derivatives or filing a separate petition on their behalf.
The derivative beneficiaries will need to file separate applications for adjustment
of status or an immigrant visa. They will be considered to be accompanying the
principal beneficiary if they immigrate or adjust concurrently or within six months;
they will be following-to-join if they immigrate more than six months later. 7
Petitioners seeking to sponsor the immigration of immediate relatives must file a
separate I-130 petition for each family member, because immediate relatives cannot
sponsor derivatives. 8 For example, if a U.S. citizen is seeking to sponsor a spouse
and stepchild, he or she must file a separate Form I-130 for each person and pay separate filing fees. Similarly, if a U.S. citizen child over age 21 is petitioning for his or
her parent, the parents spouse or unmarried child may not immigrate as derivatives,
because the parent is an immediate relative. In that case, the U.S. citizen must file a
separate I-130 petition for the stepparent and sibling. If the spouse of the parent does
not qualify as a stepparent, or the child of the parent as a sibling, they will have to
wait until the parentthe principal beneficiaryimmigrates. That parent, once an
LPR, then may file a second-preference petition for the spouse and child.

8 CFR 204.2(d)(4).
22 CFR 40.1(a)(1).
8
8 CFR 204.2(a)(4).
7

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41

Completing the Form I-130

Part A
The form is completed by the U.S. citizen, U.S. national, or LPR. The first questions ask for the petitioners relationship to the sponsored relative and whether it is
based on adoption. The qualifying relationships, including those for adopted children,
are set forth in chapter 1.
Part B
The next part, Part B, asks for basic information regarding the petitioner: full
name, current address, place and date of birth, gender, marital status, date and place
of present marriage, Social Security number, information on prior marriages, and information on how citizenship or LPR status was obtained. Type the petitioners last
name in capital letters. Give the petitioners current address, even if it is temporary or
the petitioner is residing abroad. If the petitioner resides in certain specified countries, he or she may file the petition with the USCIS office abroad. 9 Be aware, however, that the petitioner eventually must complete an affidavit of support, which requires that he or she be domiciled in the United States. 10 Information regarding place
and date of birth should be taken from the birth certificate. Be sure to include all other names used by the petitioner, including aliases and maiden names. If the petitioner
is married, take the information on date and place of present marriage from the marriage certificate. Include only Social Security numbers obtained lawfully by the petitioner from the Social Security Administration, not fictitious or borrowed ones.
Indicate whether the petitioner has any prior marriages, including the names of
prior spouses and dates on which the marriages ended. Note that if the petitioner is an
LPR who obtained such status through marriage, and the petitioner is seeking second-preference classification for a foreign national spouse, certain requirements must
be met. 11 Either five years must have elapsed since the date the petitioner acquired
LPR status, 12 or the petitioner must establish through clear and convincing evidence
that the prior marriage was not entered into for purposes of evading the immigration
laws; 13 or the prior marriage must have ended through the death of the petitioning
foreign nationals spouse. 14 If five years have elapsed since the date on which the
9

8 CFR 204.1(e)(2).
INA 213A(f)(1)(C).
11
INA 204(a)(2)(A).
12
INA 204(a)(2)(A)(i).
13
INA 204(a)(2)(A)(ii).
14
INA 204(a)(2)(B).
10

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IMMIGRATION LAW & THE FAMILY, 3RD ED.

42

petitioner acquired legal residency, USCIS cannot use the clear and convincing
evidence standard to deny a petition filed on behalf of petitioners new spouse. 15
If the petitioner is an LPR, indicate the date and place of adjustment of status or
the date the LPR first used the immigrant visa issued by the consulate to gain entry to
the United States.
Part C
Part C asks for information regarding the beneficiary. Type in the beneficiarys
name and refer to his or her birth certificate, passport, or Form I-94, Arrival
Departure Record. If there are any inconsistencies, explain the reason on an attached
piece of paper. Give the foreign nationals current address, even if it is temporary. If
the beneficiary and the petitioner are spouses residing in the United States and not
residing together, this will raise suspicions and may result in USCIS conducting an
investigation or interview regarding the validity of the marriage. However, the fact
that the couple is not currently living together is not, in and of itself, a valid basis for
denying the visa petition. 16 List the beneficiarys place of birth; take the information
from the beneficiarys passport. The beneficiarys country of birth may have significance for a preference-category petition, since the availability of a visa in a particular
category may depend on the beneficiarys country of birth. 17 List any other names
used by the beneficiary, including maiden names; if none, so state. If the beneficiary
is currently married, list the date and place of the marriage; that information should
be found in the marriage certificate. List only valid Social Security numbers.
The alien registration number refers to that number assigned to LPRs, persons
placed into removal proceedings (including prior deportation or exclusion), and persons who have otherwise been involved in an investigation conducted by USCIS. If
the person has an A number, that may indicate to the Department of Homeland Security (DHS) that the foreign national is in proceedings. Foreign nationals who marry
while in deportation, exclusion, or removal proceedings (but not rescission proceedings) are subject to a two-year foreign residency requirement before the I-130 petition may be adjudicated. 18 Alternatively, the petitioner must establish by clear and
convincing evidence that the marriage was entered into in good faith and not for immigration purposes. 19 Provide information on all prior marriages.
Indicate whether the beneficiary has ever resided, and is currently residing, in the
United States, since this will be important in determining eligibility for adjustment of
15

Matter of Pazandeh, 19 I&N Dec. 884 (BIA 1988).

Matter of McKee, 17 I&N Dec. 332, 334 (BIA 1980).
17
INA 202(e).
18
INA 204(g).
19
INA 245(e)(3).
16

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status. It will also be important in determining if the beneficiary has incurred any periods of unlawful presence, which is defined in chapter 6. 20 If he or she is currently
in the United States and arrived as a nonimmigrant, write down the following information, taken from the Form I-94: the 11-digit I-94 number, date of arrival, date authorized stay will expire or did expire, and the letter designation of the nonimmigrant
status at entry (e.g., B-1/B-2, F-1). If the beneficiary is currently in the United States
but entered without being inspected or was paroled into the country, enter that information on the form. This information may also be important in determining eligibility to adjust status. 21
Provide the name and address of the beneficiarys current employer, as well as the
date the beneficiary began employment. This information could be used by USCIS to
begin an investigation as to whether the employer violated the statute relating to employment of foreign nationals who are unauthorized to work. 22 It also could be used
to determine if the beneficiary worked without authorization and thus is ineligible for
adjustment of status. (That requirement does not apply to immediate relatives who
entered the United States with inspection.) 23 Once the federal government begins
again to enforce civil document fraud under Immigration and Nationality Act (INA)
274C, this information also could be used to commence those actions.
Indicate whether the beneficiary has ever been in exclusion, deportation, removal,
rescission, or judicial proceedings. Provide the date and place where the proceedings
took place. This information may be important in determining whether the beneficiary married while in immigration proceedings. If the beneficiary has been deported
or removed from the United States and has not remained outside the country for the
required period of time, he or she may need to file a request for permission to reenter. 24 If a beneficiary in that situation re-entered the United States after April 1,
1997, he or she may have triggered a more serious bar under INA 212(a)(9)(C),
which is described in chapter 6. 25 Be aware that USCIS is enforcing INA 241(a)(5),
which allows the reinstatement of deportation or removal orders, immediate physical
removal from the country, and ineligibility for adjustment of status. 26 This occurs if
the foreign national left the United States under an order of deportation, exclusion, or
removal and subsequently re-entered illegally, regardless of the date of re-entry.
20

INA 212(a)(9)(B), (C).

INA 245(c), (i).
22
INA 274A.
23
INA 245(c).
24
INA 212(a)(9)(A)(iii). See chapter 7 for more information and a sample Form I-212 application.
25
INA 212(a)(9)(C).
26
8 CFR 241.8.
21

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In addition, foreign nationals who were ordered deported in absentia are inadmissible for five years after their departure; 27 those who were granted voluntary departure but failed to leave on time may be barred from adjusting status, as well as other
forms of relief, for up to 10 years. 28
If the foreign national is currently in proceedings (pending before an immigration
judge or the Board of Immigration Appeals), he or she may be eligible to file for adjustment of status with the Executive Office for Immigration Review. If the person
was previously in immigration proceedings and received a final order that has not
been effected by a subsequent departure, he or she may have to move to reopen the
proceedings to apply for adjustment before an immigration judge. 29 The trial attorney
may have to consent to this motion to reopen. 30
Part C continues with a question regarding the name, date of birth, and country of
birth of the foreign national relatives spouse and children. If the petition is being
filed on behalf of a spouse, do not include the name of the petitioner. Refer to the
earlier section on who can file an I-130 petition to determine which relatives require
separate Form I-130 applications and which can immigrate as derivatives, or family
dependents, with the principal beneficiary. 31
Give the address in the United States where the intending immigrant plans to reside. If this is different from the address where the petitioning spouse currently resides and the parties do not intend to reside together, this will raise suspicions and
may result in an investigation or interview to determine if the marriage is bona fide.
List the beneficiarys foreign residence, if any, in response to question 19. If a foreign address was listed in part C, question 2, put the same address here. Most
nonimmigrants (except for H-1, L-1, and E visa holders) must maintain a foreign address that they have no intention of abandoning as a condition to their status. 32 In a
spousal petition, list the address where the couple last resided together. If they are
currently residing together, that address should be the same as that listed in part B,
question 2. If the parties have never resided together, suspicions may be raised as to
the legitimacy of the marriage, and an investigation and marriage interview may result.
To respond to question 22, the petitioner must understand the eligibility requirements for adjustment of status. 33 These are set forth in chapter 3. If the foreign na27

INA 212(a)(6)(B).
INA 240B(d).
29
INA 240(c)(7)(C).
30
8 CFR 1003.2(c)(3)(iii).
31
See 8 CFR 204.2(a)(4), (d)(4).
32
INA 214(b).
33
8 CFR 245.1(b), (c).
28

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tional relative cannot meet the adjustment requirements, he or she will go through
processing abroad at a U.S. consulate. 34 These eligibility requirements and differences are set forth below. If you know that the intending immigrant will be consular
processing, indicate the appropriate consular office. It normally will be in the country
of the foreign nationals citizenship and in the city of the U.S. consulate closest to the
foreign nationals place of residence or last residence abroad. 35 Consult the website
of the Department of State (DOS) to obtain the addresses of the consulates abroad,
their geographic jurisdictions, their contact information, and whether they process
immigrant visas. Do not designate a consulate other than the appropriate one unless
prior arrangements have been made.
Part D
Part D asks for miscellaneous information. If the petitioner simultaneously is
submitting I-130 petitions for other relatives, indicate their names and relationship. If
the petitioner has ever submitted an I-130 petition for this or any other foreign national in the past, include that information as well. If the petition was for the same
relative and the petition was denied, do not re-file unless the facts have changed or
new evidence can be supplied to overcome the reasons for the denial. Indications that
the petitioner has filed other I-130 petitions for prior spouses may raise suspicions
about the validity of the present marriage.
The petitioner, not the sponsored relative, signs the Form I-130. 36 Anyone who
assists in preparing the Form I-130, even if a separate Form G-28 is filed, 37 also
should sign the petition at the end of the form. If you are an attorney or accredited
representative, you should sign the form. If you are not, but work for an agency that
has attorneys or accredited representatives on staff, one of them should sign the form
after reviewing it.
Supporting Documentation
The petitioner must attach certain supporting documents to establish U.S. citizenship, U.S. national, or LPR status, and familial relationship to the beneficiary. 38 Read
the instructions on the Form I-130 for detailed information on the specific documents
that are required. The instructions require the petitioner to provide a photocopy of
each required document only. If the petitioner submits an original, USCIS may retain
it for its records. Submit a translation of all documents in a foreign language, along
34

INA 221, 222.

9 Foreign Affairs Manual (FAM) 42.61 N1.1, N1.2, N2.1.
36
8 CFR 204.1(d)(1).
37
8 CFR 292.4.
38
8 CFR 204.1(f)(1).
35

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with a certification that the translation is accurate and the translator is competent to
translate. 39 The regulations require a translation of the document in its entirety, but
some USCIS service centers and district offices accept summary translations of
common foreign documents.
Primary evidence consists of official government documents that are properly authenticated or certified. Secondary evidence would include records that are made or
recorded contemporaneously with the event in question, such as baptismal, hospital,
church, school, or employment records. When petitioners have established that primary evidence listed in the Foreign Affairs Manual is generally unavailable in that
country, or that they are unable to obtain a copy of the official document, they may
submit secondary evidence. 40 The rules for establishing this and the types of acceptable secondary evidence are set forth in the regulations. 41 Secondary evidence also
could include affidavits from persons with personal knowledge of the event. 42
The standard of proof that the petitioner must satisfy is the preponderance of the
evidence. 43 This means that it is more likely than not that the statements are true
and that the relationship is valid. 44 There are three situations, however, in which the
petitioner must satisfy a higher standard, that of clear and convincing evidence,
which must be enough to produce a firm belief or conviction that the relationship is valid. 45 If the petitioner is an LPR who obtained that status within five years
through a prior marriage to a U.S. citizen or LPR, and the prior marriage did not end
through death of the spouse, the petitioner must establish through clear and convincing evidence that the prior marriage was entered into in good faith. 46 If the foreign
national spouse married a U.S. citizen or LPR while in immigration proceedings and
the foreign national has not subsequently resided abroad for two years, the petitioner
must also meet that higher burden to establish the bona fides of the marriage. 47 And
if the petitioner submitted a previous I-130 petition for the same beneficiary that was
denied or withdrawn, USCIS may require additional evidence to establish the relationship. 48
The following documents must be attached:
39

8 CFR 204.1(f)(3).
8 CFR 204.1(f)(1).
41
8 CFR 204.1(f), (g).
42
8 CFR 204.1(g)(2)(ii).
43
Matter of Soo Hoo, 11 I&N Dec. 151 (BIA 1965).
44
See U.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987).
45
Matter of Carrubba, 11 I&N Dec. 914 (BIA 1966).
46
INA 204(a)(2)(A).
47
INA 204(g), 245(e)(3).
48
Adjudicators Field Manual (AFM) ch. 20.4.
40

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Petitioners evidence of U.S. citizenship, U.S. national, or LPR status. Acceptable primary and secondary evidence of citizenship are listed in the regulations. 49 Primary evidence of U.S. citizenship includes the following: birth certificate if born in the United States; certificate of naturalization; certificate of
citizenship; valid unexpired U.S. passport; or Form FS-240, Report of Birth
Abroad of a U.S. Citizen. 50 U.S. nationals should submit a copy of a U.S. passport, certificate of identity showing U.S. nationality, or a birth certificate. 51
Primary evidence of LPR status includes a copy of the Form I-551, Permanent
Resident Card, or a stamp in the foreign passport indicating temporary evidence of LPR status. 52
Evidence of the family relationship. The requirements are set forth in the regulations and the instructions to the form. 53 Primary evidence includes birth certificates, marriage certificates, and adoption decrees.
If a marriage certificate is required and either of the parties has been married previously, include documents showing termination of the prior marriage. 54 In all spousal petitions, the petitioner should submit one or more of the following documents to
establish good-faith marriage: joint ownership of real property or joint tenancy; joint
ownership of personal property or commingling of financial resources; birth certificates of children born from the relationship; or affidavits from persons who have
known the married couple who can attest that it was bona fide. 55 Other evidence
could include photos or other proof of the wedding, insurance forms naming the other
spouse as a beneficiary, and joint tax returns.
For mother-child relationships, primary evidence includes the childs birth certificate bearing the name of the mother. For father-child relationships, it includes the
childs birth certificate bearing the fathers name, as well as a marriage certificate
showing the fathers marriage to the childs mother. If the child was born out of wedlock, it must include evidence of legitimation. This should be either a formal court
decree of legitimation or proof of a subsequent marriage between the childs father
and mother before the child turned 18. In the alternative, the petitioning father may
submit evidence of a bona fide parent-child relationship (e.g., custody, provision of
support) before the child turned 21.
49

8 CFR 204.1(g)(1).
8 CFR 204.1(g)(1)(i)(vi).
51
AFM ch. 21.2(a)(9)(C).
52
8 CFR 204.1(g)(1)(vii).
53
8 CFR 204.2.
54
8 CFR 204.2(a)(2).
55
8 CFR 204.2(a)(1); Instructions for I-130, Petition for Alien Relative.
50

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Primary evidence of a sibling relationship includes the petitioners and the beneficiarys birth certificates showing at least one parent in common. It may also have to
include marriage certificates of the parent(s), prior divorce decrees, and evidence of
legitimation for children born out of wedlock.
Other Forms and Documents Included in the Form I-130 Application Packet
The complete I-130 petition packet is made up of the following documents:
Form I-130, Petition for Alien Relative;
Form G-325A, Biographic Information (not required for persons under 14) for
both the petitioner and the beneficiary in a spousal petition;
Photos of the petitioner and the beneficiary in a spousal petition; 56
Evidence of petitioners citizenship (birth certificate, naturalization certificate,
certificate of citizenship, U.S. passport, Form FS-240) or LPR status (Form I551);
Evidence of family relationship between petitioner and beneficiary (marriage
certificate, birth certificate);
Evidence of termination of prior marriages (if appropriate); and
Evidence of the bona fides of the marriage (if a spousal petition).
Where to File
If the petitioner is in the United States, he or she will file the petition and supporting documents with either the Chicago or the Phoenix lockbox facility. Those residing in the following states or territories will file the petition at USCIS, Attn: I-130,
P.O. Box 21700, Phoenix, AZ 85036: Alaska, American Samoa, Arizona, California,
Colorado, Florida, Guam, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New
Mexico, North Dakota, Northern Mariana Islands, Oklahoma, Oregon, Puerto Rico,
South Dakota, Texas, Utah, Virgin Islands, Washington, Wyoming. Those filing by
express mail or courier delivery should send the petition to USCIS, Attn: I-130, 1820
E. Skyharbor Circle S, Suite 100, Phoenix, AZ 85034.
Those residing in the following states or territories will file the petition at USCIS,
P.O. Box 804625, Chicago, IL 60680-4107: Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Vermont, Virginia, Washington, D.C., West Virginia, and Wisconsin.
Those filing by express mail or courier delivery should send the petition to USCIS,
Attn: I-130, 131 South Dearborn3rd Floor, Chicago, IL 60603-5517. The Form I56

8 CFR 204.2(a)(2).
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130 will be feed in and routed to the appropriate service center, which is dependent
on the petitioners address.
If the petitioner is filing the Form I-130 concurrently with an application for adjustment of status, he or she should file the whole packet at the following address:
USCIS, P.O. Box 805887, Chicago, IL 60680-4120. Those filing the Form I-130 and
Form I-485 by express mail or courier delivery should send the packet to USCIS,
FBAS, 131 S. Dearborn, 3rd Floor, Chicago, IL 60603-5517.
Petitioners filing from overseas in countries with a USCIS office may send their I130 forms to the Chicago lockbox, or they may file them at the USCIS office having
jurisdiction over the area where they live. If there is no USCIS overseas office in that
country, petitioners residing abroad should file the petition at the Chicago lockbox
facility.
After approval of the Form I-130, the petition will be retained by USCIS if the
parties indicated that they will be adjusting status. If the I-130 petition indicates that
the parties will be consular processing, the petition will be forwarded to the National
Visa Center (NVC) in Portsmouth, NH, which will in turn transmit it to the appropriate consulate when the priority date is current. The role of the NVC is described in
greater detail in chapter 4.
Filing Fee
The filing fee for the I-130 petition is currently $420.
Second Step: USCIS Marriage Interview
In marriage-based cases, USCIS may schedule an interview with the parties, or
conduct an independent investigation, to determine the validity of the marriage. 57
Generally, USCIS will conduct an interview of the parties to the I-130 petition only
when it suspects fraud. Circumstances that may raise USCISs suspicions include
vast age differences between the parties; indications that they are not currently residing together or never have resided together; the fact that the couple do not speak a
common language; and the fact that they have filed for legal separation. 58 There is no
requirement that the marriage be viable at the time one spouse is seeking to sponsor
the other, provided that the marriage has not been terminated. 59 But evidence that the
marriage is not viable puts a greater burden on the parties to establish that it was valid at the time it was entered into. Whenever USCIS schedules a marriage interview,
the parties should be prepared to establish the validity of the marriage through docu57

8 CFR 103.2(b)(7).
AFM ch. 21.3(a)(2)(H).
59
Matter of Boromand, 17 I&N Dec. 450, 454 (BIA 1980).
58

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mentary evidence, photos, their testimony, and the testimony or affidavits of friends
and relatives.
The following are some of the documents that should be submitted when the validity of the marriage is questioned: wedding photos and other records of the ceremony; photos, letters, telephone bills, airline tickets, and other evidence of the couples
relationship during courtship; lease or other records showing the couple lived together; insurance policies; employment records showing marital status and any employment-related benefits paid; joint credit cards, bank accounts, or other contractual relationships; joint tax returns; and birth certificates of children born of the relationrelationship.
At the interview, expect the examiner to inquire into the following areas, either
with the couple together or separate:
Ancient historyplace and date of birth of spouse; names and addresses of siblings and parents; basic biographical information, such as spouses residences
during the last 10 years, etc.
Relationship historywhere did the couple first meet, first go out together, go
on trips together, ask the other to get married, get dressed before the marriage
ceremony, get married, etc.
Recent historywhat was the last movie they saw together; who usually leaves
first in the morning; who usually comes home first in the evening; what side of
the bed does the spouse prefer; discuss everything they did together on a certain day, etc.
Situational historydescribe current living quarters: number of radios or TVs,
location of clocks, color of bathroom rug or shower curtain, type of oven or
microwave, etc.
Private historyscars or birth marks, favorite perfume, nicknames, spouses
favorite color or food, spouses best friend, etc.
Third Step: Adjustment of Status or Consular Processing
The next step is to determine whether the parties are eligible to adjust status or intend to consular process. The requirements for adjustment of status are set forth in
detail in chapter 3. The following are the basic requirements for adjustment of status:
Immediate relative relationship:
Inspected and admitted or paroled into the United States; 60 or

60

INA 245(a).
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Eligible for adjustment pursuant to INA 245(i), which requires that an

I-130 petition, I-360 petition, or labor certification have been filed on behalf
of the beneficiary on or before April 30, 2001; 61 and
Not inadmissible.
Preference category:
Inspected and admitted or paroled into the United States, 62 and maintained
lawful nonimmigrant status since admission, including no unlawful employment; or
Eligible under 245(i), and visa currently available; 63 and
Not inadmissible.
All those who are not eligible to adjust must consular process. The procedure and
requirements for consular processing are set forth in chapter 4.
Fourth Step: Inspection and Admission by CBP
For persons who have gone through consular processing and received an immigrant visa from a U.S. consulate, the last step is presenting themselves for inspection
and admission before a CBP or USCIS official at the border. 64 The visa is valid for a
six-month period, after which it expires. 65 Even though DOS has considered the applicant eligible for admission as an immigrant, CBP also has the right to make a separate determination. 66 If CBP believes the person to be ineligible for an immigrant
visa or inadmissible, the agency may deny admission. 67
The immigrant must be prepared to establish to the satisfaction of the inspector
that he or she is not inadmissible. This means that at the time of inspection the inspector may inquire as to eligibility for the immigrant visa (e.g., legitimacy of marriage, proper familial relationship), as well as admissibility, taking into account all
the grounds of inadmissibility. The foreign national must remain eligible for admission as an immigrant at the time of presentation to the agent. In other words, a foreign national immigrating based on marriage to a citizen or LPR must be married to
that person at the time of inspection; a foreign national immigrating as an unmarried
61

INA 245(i)(1).
INA 245(a).
63
8 CFR 245.2(a)(5)(ii).
64
INA 221(a)(2).
65
INA 221(c), 22 CFR 42.72.
66
8 CFR 235.1(f).
67
INA 221(h).
62

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son or daughter must remain unmarried; and a foreign national immigrating as a

child still must meet that definition. Because the agent may inquire as to whether
any of the grounds of inadmissibility apply, the foreign national must be admissible
both at the time of the consular interview and at the time of inspection at the border.
Foreign nationals who have committed certain crimes or certain acts after the granting of the visa may be denied admission.
Petition Revocation
Intending immigrants may lose their ability to immigrate under an approved I-130
petition if circumstances occur that trigger automatic petition revocation. These circumstances include:
Notice of the withdrawal of the petition by the petitioner;
Death of the beneficiary;
Termination of the marriage in an immediate-relative or second-preference
spouse petition case;
Marriage of a second-preference petition beneficiary (child, son, or daughter of
an LPR);
Loss of the petitioners permanent residency in family-based cases; and
Death of the petitioner, unless the USCIS in its discretion determines that for
humanitarian reasons revocation would be inappropriate. 68
If the U.S. citizen spouse dies, the noncitizen spouse may qualify for immigration
benefits as a widow or widower. 69 Eligibility for that status and the procedures for
seeking permanent resident status are explained in chapter 5. Other surviving family
members may qualify for immigration benefits after the petitioner or principal beneficiary has died. 70 The beneficiaries would have to establish that they were residing
in the United States at the time of the death and are continuing to reside here, and
would need to obtain the assistance of a substitute sponsor. Eligibility for this benefit
is set forth in chapter 1.
In cases involving the death of the petitioner where the beneficiary cannot establish residency in the United States, the regulations contain an exception that may apply if the beneficiary establishes that it would be inappropriate to revoke the application based on humanitarian factors. 71 This relief is available when the petitioner
died after the petition was approved, and it requires a formal motion or request to
68

8 CFR 205.1(a)(3)(i).
INA 204.2(b)(2)(A)(i).
70
INA 204(l); USCIS Memo, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l) of the Immigration and Nationality Act (Dec. 16, 2010).
71
8 CFR 205.1(a)(3)(i)(C)(2).
69

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reinstate the petition. USCIS has indicated that the following factors would be considered in satisfying the test of inappropriateness: impact of revocation on the family
unit in the United States, the beneficiarys poor health or advanced age, the beneficiarys long residence in the United States, absence of any ties to the beneficiarys
country of origin, and any undue delay by USCIS or the consulate in processing the
petition or application. 72 USCIS internal documents provide some examples of when
reinstatement should be granted: (1) where the original petitioner died prior to the
person receiving an immigrant visa or adjusting status, especially in preference cases
if there was a long wait, 73 or (2) if there is one family member (out of many) who
has been unable to immigrate because of the petitioners death. 74
In order to reinstate the I-130 petition, the beneficiary must file a formal motion or
request, attach supporting documentation, and submit the motion to reinstate to the
legacy INS or USCIS office that approved the petition. There is no fee for this type of
motion. The motion must include the following:
Death certificate of the petitioner
Form I-797, Notice of Approval of I-130 petition
Declaration from the beneficiary detailing the humanitarian factors in the case
Substitute Form I-864, Affidavit of Support, from family member (see below) 75
Proof of substitute sponsors relationship to the beneficiary
Additional documentation establishing the humanitarian factors might include any
of the following:
Proof of the bona fides of the relationship to the deceased petitioner;
Proof of the beneficiarys long residence in the United States;
Proof of relationship to other family members and their immigration/citizenship
status;
Proof of any health-related problems of the beneficiary or the beneficiarys
home country;
Proof of attachment to the local community and/or involvement in civic
organizations; and
72

AFM ch. 21.2 (h)(1)(C).

PowerPoint slide handouts prepared in 2003 by the Department of Homeland Security, USCIS Office of
Adjudications, for training presentations in New York, Miami, Chicago, Los Angeles, and San Francisco
on Grounds of Inadmissibility, Affidavit of Support, 212(h) Criminal Waivers, and Unlawful Presence.
74
AFM ch. 21.2(g)(1)(C).
75
INA 213A(f)(5).
73

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Declarations from friends, religious leaders, employers, and others, describing

the beneficiarys good moral character and benefit to the community.
After implementation of INA 204(l), applicants for humanitarian reinstatement
will largely consist of those who have never resided in the United States, and they
have difficulty establishing the necessary humanitarian factors. In those cases, the
presence of other family members in the United States who were able to immigrate
or adjust should be stressed. A sample motion to reinstate and an exhibit list of sample supporting documents appear in Appendix 1B.
If USCIS reinstates the I-130 petition, it will forward the approved petition either
to the office adjudicating the adjustment of status application or to the NVC or appropriate DOS post.
One of the more important changes to immigration law in 1996 was the added
burden of fulfilling the affidavit of support requirements, discussed in depth in chapter 8. Every I-130 petitioner is also a sponsor who must complete a Form I-864. 76
Between 1999 and 2002, the agency interpreted the statute literally and required every family-based petitioner to file an affidavit of support. Therefore, even when the
petitioner had died and the agency had reinstated the I-130 petition based on humanitarian factors, it refused to waive the affidavit of support requirement or allow the
filing of a substitute affidavit from a joint sponsor. DOS used to deny immigrant visas based on the same reasoning.
In early 2002, President George W. Bush signed into law the Family Sponsor Immigration Act of 2002. 77 This law remedied this problem for cases in which the I-130
petition was first approved and then reinstated after the petitioner died. The intending
immigrant is now allowed to submit a substitute affidavit of support from another
close relative. 78 The list of family members of the intending immigrant who can act
as alternative sponsors in that situation includes the following: spouse, parent, mother-in-law, father-in-law, sibling, child (at least 18 years old), son, daughter, son-inlaw, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild, and legal
guardian.
Substitute sponsors must meet the other requirements of INA 213A(f). In other
words, they must be at least 18 years of age, a U.S. citizen or U.S. national or LPR,
domiciled in the United States, and able to demonstrate the means to maintain an annual income of at least 125 percent of the poverty line. To satisfy the last requirement, they may use the income of other household members, as well as any assets
that can be converted into cash within one year. If the substitute sponsor is still unable to satisfy the income requirement, he or she may submit a Form I-864 from a
76

INA 213A(a)(1).
Family Sponsor Immigration Act of 2002, Pub. L. No. 107-150, 116 Stat. 74 (Mar. 13, 2002).
78
INA 213A(f)(5)(B).
77

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joint sponsor. 79 Alternatively, the affidavit of support requirements are satisfied if the
intending immigrant qualifies to file a Form I-864W in lieu of a Form I-864 (40 qualifying quarters or derived citizenship under INA 320).
Immigrating Adopted Children under the Hague Convention Rules
The immigration of a child adopted on or after April 1, 2008, requires compliance
with the Intercountry Adoption Act of 2000, 80 which the United States enacted to
comply with its obligations under the Hague Convention. 81 U.S. citizens seeking to
adopt and immigrate a child from one of the convention member countries must satisfy certain requirements. 82 The Hague Convention rules were intended to provide
more centralization and uniformity in the international adoption process. They have
now brought more harmony between different countries laws, more transparency,
more communication among agencies established in the member countries, and more
assurance that the adoption and emigration is in the best interests of the child. But at
the same time, these rules have brought significant changes in the way practitioners
approach this area of law.
The first step in advising a client who is considering adopting a noncitizen child is
to understand the Hague Convention rules and determine if they apply. If the rules
apply, the adoptive parent does not have a choice of proceeding with a family or an
orphan petitionthe client must follow the Hague procedures. To emphasize the importance of this initial determination, it is helpful to know the major differences between the Hague rules and the other two procedures. The following is a summary:
Only U.S. citizensnot LPRsmay adopt and immigrate children subject to
the Hague rules; 83
DOS coordinates with the equivalent Central Authority or designee in the
childs home country and this foreign entity is heavily involved in the process; 84
Adoption cannot serve as the basis for the childs immigration unless it follows
certain prescribed steps and sequences;
79

8 CFR 213a.2(c)(2)(iii)(D).
Pub. L. No. 106-279, 114 Stat. 825 (Oct. 6, 2000).
81
Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption, May 29,
1993, S. Treaty Doc. 105-51 (1998), 32 I.L.M. 1139. For in-depth guidance on international adoption
issues, see The International Adoption Sourcebook (AILA 2008), http://agora.aila.org, and search
adoption.
82
INA 101(b)(1)(G); 8 CFR 300, et seq.; 22 CFR 42.24.
83
8 CFR 204.307.
84
8 CFR 204.301.
80

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The adoptive parents are prohibited from contacting the birth parents unless
they fall within narrow exceptions; 85
The adopted child must be under 16 when the decree is finalized or the Form I800 is filed; 86 there is no exception for children between ages 16 and 18 whose
siblings have been adopted while under 16; and
The definition of adoptable child is broader than orphan and includes those
whose (1) single birth parent has relinquished control; (2) two living birth parents are incapable of providing care and have released the child for adoption;
or (3) unmarried birth father, who can qualify as a sole parent, releases the
child for adoption after the birth mother has abandoned the child. 87
Hague Convention rules apply to children who are habitual residents of one of
the approximately 80 countries that have signed on to the international treaty. 88 For a
current list of these signatories, check the DOS website at http://adoption.state.gov.
Some of the countries that have not ratified the Hague Convention include Kazakhstan, Russia, Guatemala, Ethiopia, and South Korea. Some of the ones that have include China, India, Mexico, and the Philippines.
The Hague Convention rules apply only to adoptions between two Hague Convention countries. This could be significant for children born in one foreign country but
who have been residing in another country, including the United States. If the foreign
Central Authority determines that the child is now habitually residing in the United
States, for example, the Hague rules would not apply. But children are generally considered to be habitual residents of the country of their citizenship unless their status
in the third country is sufficiently stable. Make sure the prospective adoptive parents
are habitual residents of a Hague country, e.g., residing in the United States or residing temporarily abroad with the intention of returning before the child turns 18.
Hague rules do not apply to adoptions finalized before April 1, 2008. Adoptions
finalized on or after that date may possibly be reopened and granted nunc pro tunc to
an earlier date. They do not apply to cases where the prospective adoptive parents
filed either the Form I-600 or Form I-600A before April 1, 2008. They also do not
apply to cases where the adoptive parent has resided for at least two years with legal
and physical custody of the adopted child in the childs original country before filing
a family petition.

85

8 CFR 204.309(b)(2).
INA 101(b)(1)(G); 8 CFR 204.313(c)(2).
87
INA 101(b)(1)(G).
88
8 CFR 204.303(b).
86

Copyright 2013. American Immigration Lawyers Association.

CHAPTER 2 OVERVIEW OF THE APPLICATION PROCESS FOR PERMANENT RESIDENCE

57

Procedure for Applying

If the Hague Convention rules apply, the following steps must be adhered to in
this precise order. First, the prospective adoptive parent(s) obtains an approved home
study from an accredited provider, licensed in the adoptive parents state, and authorized to conduct such studies. 89 The adoptive parent(s) then files Form I-800A, Application for Determination of Suitability to Adopt a Child from a Convention Country,
with USCIS, along with the home study. USCIS may need to communicate with the
designated adoption service provider.
After approving the Form I-800A and home study, USCIS forwards them to the
adoption service provider and the National Visa Center, which in turn forwards them
to the Central Authority of the designated foreign country. That Central Authority
then identifies a child and refers him or her to the prospective parent(s) along with a
report on his or her medical and social background. If the family accepts the referral,
they file Form I-800, Petition to Classify Convention Adoptee as an Immediate Relative, with USCIS. USCIS then provisionally approves the petition and forwards it to
the appropriate U.S. consulate.
The consular officer screens the child for admissibility and annotates the visa application with the childs ability to immigrate following adoption. The officer also
transmits the Article Five Letter to the Central Authority, which basically affirms
that the adoptive parents may proceed with the adoption. The family then completes
the adoption or guardianship process and submits the official decree to the consulate,
which approves the Form I-800 and issues the immigrant visa (IH-3 or IH-4).
Beginning on September 25, 2008, the USCIS expanded its direct mail program to
include Forms I-800A and I-800. Applicants must now submit them to the USCIS
Chicago lockbox facility for initial processing using the following address: USCIS,
P.O. Box 805695, Chicago, IL 60680-4118. These forms will then be forwarded to
the National Benefits Center in Lees Summit, MO, which has assumed processing of
these petitions.

89

22 CFR Part 96.

Copyright 2013. American Immigration Lawyers Association.

Barbara Hines, The University of Texas School of Law Austin, TX

Stephanie Rodriguez Taylor, American Gateways - Austin, TX

TAB 04

Introduction to Removal Proceedings




BarbaraHines,UniversityofTexasSchoolofLawImmigrationClinic
StephanieTaylor,AmericanGateways



Basictermsandconcepts
ImmigrationCourtprocedures
Overviewofdefensesand
discretionaryrelief

 

After1996,IllegalImmigrationReformand
ImmigrantResponsibilityAct(IIRIRA),
unitaryremovalsystemfordeportation
andadmissibilityproceedings
Before1996,deportationandexclusion
proceedings,ratherthanremoval




AdministrativeProceeding
Relaxedrulesofevidence

Fewerconstitutionalprotections
ExPostFactoprovisiondoesnotapply
Newlawmaybeappliedretroactively,ifCongress
clearlystatesitsretroactiveintent
Norighttocourtappointedattorneyatgovernment
expense
Detentionpendingdeportation



Stoppedatborderorairport
PickedupbyBorderPatrolaftercrossingborder
SecuredCommunitiesandDHSholds
PickedupduringICEraid
ArrestedbyDHSathome,onthestreet,etc.
Applicationforimmigrationbenefitsdenied
Referredbyasylumoffice,afterasylumoffice
declinestograntasylum


ExpeditedRemovalunderINA 235(b)
Stoppedatborder(bridgeorairport)withoutvalidentry
documents
Enteredwithoutpermissionorparole andarrestedwithin100
milesofborderhavingbeeninU.S.forlessthan14days.

Reinstatementofremovalifpreviouslyremoved
VisaWaiverProgramEntrants
AdministrativeRemovalunderINA 238(b)
NonLPRswhohavebeenconvictedofanaggravatedfelony


Determinationofwhethernoncitizenisremovable
becauseof:
Inadmissibility
Deportability
Differentburdensofproof
Determinationofwhethernoncitizenqualifiesforrelief
asadefensetoremoval
Asylum,cancellationofremoval,adjustmentofstatus,
etc.
Noncitizenalwayshasburdenofproof





Twotypesofpersonsininadmissibility removal
proceedings
Arrivingalien deniedentryatairportorborderincludingthose
whoseekasylumandcertainLPRsunderINA101(a)(13)
Noteligibleforbondbutmaybereleasedonparole

Personspresentwithoutadmissionorparole
Whoarenotsubjectedtoexpeditedremoval

Burdenofproofisgenerallyonnoncitizenby
clearandconvincingevidence
Governmenthasburdenofproofwhenitalleges
apermanentresidentisanarrivingalien



Appliestononcitizenswhoareadmittedtothe
U.S.
LPRs
Temporaryvisaholders
BurdenofproofonDHStoshowdeportabilityby
clearandconvincing evidence.
INA 240(c)(3)(A).

Woodbyv.INS,385U.S.276(1996)



Applicantforanyvisamaynotbeinadmissible

AdjustmentofStatustolawfulpermanent
resident
ConsularProcessingforlawfulpermanent
resident
Nonimmigrantvisa
Burdenofproofonapplicantbya
preponderanceoftheevidence


Barrington,anLPR,wasconvictedofdrugpossessionand
takenintoICEcustodyfromtheTravisCountyJail.
MarcoswhoenteredtheU.S.throughtheriverandisarrested
inAustin,Texas.
SarawasadmittedtotheU.S.onastudentvisaandwas
arrestedduringaraidattherestaurantwhereshewas
workingwithoutpermission.
Juana,anLPR,whogoeshometovisitherailinggrandmother.
Whenshecomestotheborder,ICEdiscoversshehasaprior
convictionfortheftinTravisCountyandpresentsaconviction
record


Inwhatsituationsdothegroundsof
inadmissibilityapply?
Whohastheburdenofproof?
Inwhatsituationsdothegroundsof
deportabilityapply?
Whohastheburdenofproof?
Afterremovabilityhasbeenestablished,whohas
theburdenofprooftoestablishrelieffrom
removal?



Groundsofinadmissibility

Groundsofdeportability

Health
Crimes
Drugs
CrimesofMoralTurpitude
MultipleCrimes
Presentwithoutadmissionorparole
Unlawfulpresence
Misconductandfraud
Falseclaimstocitizenship
Illegalvoting
Terrorism
Publiccharge

Crimes
Aggravatedfelonies
Drugs
CrimesofMoralTurpitude
Firearms
Domesticviolence
Violationoftermsofadmission
Misconductandfraud
Terrorism
FalseClaimstocitizenship
Illegalvoting



Removalproceedingsincludedeterminationsasto
removability(inadmissibilityordeportability)ANDas
torelieffromremovability
Removabilityisdeterminedfirst usuallyatmaster
calendarhearing
ThentheImmigrationJudgeproceedstoconsider
availablerelieffromremoval(e.g.asylum,
cancellationofremoval,etc.)andsetscasefor
individual(merits)hearing
Call18008987180forcaseinfo



FormI213
Swornstatement
Favorablecrediblefearscreen
NTAmustadvisenoncitizenofthenatureofthe
proceedings,factualallegations,removalcharge
Reviewallofthesedocumentscarefully







NTAisservedonyourclient
Noformaldiscoveryinimmigrationproceedings
FileaFreedomofInformationAct(FOIA)
ReviewEOIRfilebutnorighttoreviewAfile(ICE
file)
AskfordocumentsfromICEattorney
AskjudgeduringhearingtoorderICEtogive
youthedocuments
PreTrialconference
Subpoena


Strategiestodecidewhethertochallengetheremoval
charge
Rulesofstatutoryconstruction
Plainlanguage
Ruleoflenity
Sameordifferentwordsinsamestatute

Lookateverywordofstatute
Comparetootherimmigrationstatutesforsimilaror
differentlanguage
Regulations,caselaw,DHSmemosandguidance
Forcriminalrelatedgroundsofremoval,elementsofthe
offense,notRespondentsactualconduct





Allarrivingaliens
Mostcriminalgroundsofremoval
INA 236(c)AttorneyGeneralshalltakeintocustody..
whenreleasedfromstateorfederalcustodyonprobation,
parole,jail,etc.

Securitygrounds
Demorev.Kim,538U.S.510(2003)

Transitioncustodyrules
ReleasedfromcustodybeforeOctober9,1998
Notsubjecttomandatorydetention


ICEsetsinitialbond
Bondcanbesetasanorderofpersonal
recognizanceoraminimumof$1500with
incrementsof$500.00
ICEcansetnobondevenifindividualis
notsubjecttomandatorydetention,
althoughcanbereviewedbyjudge

Reviewbytheimmigrationjudge
Flightriskanddangertothecommunity


Paroleauthorityfornonbondeligible
detainees
ApplicationismadetoICE
Notappealable
Nojurisdictionofcourts
Parolegrantmayincludepaymentofbond




Initialhearingsincaseinwhichjudgenormally
takespleadingsordeterminesissuesincase
BepreparedtopleadtoNTAortorequest
additionalpreparationtime
Haveargumentsreadyifyouplantodeny
removability
Knowwhatreliefyouplantoseek
Makesureyouhaveupdatedaddressofclienton
EOIRforms
E28andG28


Judgewillaskyouforlastthreedigitsofcase
Willcallcaseandaskyouorclientforcorrect
name
Somejudgesaskifclientwantstobe
representedbytheattorneymakingthe
appearance
WillaskifyouacknowledgereceiptofNTA
dated.
Willaskyouifyouarereadytopleadon
behalfofclient
Doyouwaiveadvisalsrequiredtobegiven
unrepresentedalien?
Haveyouexplainedthenatureofthe
proceedingstoyourclient?


Howdoyoupleadtothe(5)allegations?
Admit ordenytheallegations
Concede ordenythecharge

Designatecountryofremovalordeclineto
designate(asylum,withholdingandCAT)
Stateallreliefclientwillbeseeking
Example:Asylum,withholdingofremoval,CATandvoluntary
departure

CaseresetforanotherMCormeritshearing,
schedulingoffilingofapplications,briefsand
supportingdocuments

 

 

SeeImmigrationCourtPracticeManual3.3(c)(i).
Filingsshouldinclude:
FormEOIR28
CoverPage
Ifapplicable,feereceiptormotionforfee
waiver
Application
Proposedexhibitswithtableofcontents
ProofofService


Supportingdocumentsdue15daysbeforehearing
unlessjudgesetsadifferentfilingdate
Witnesslistdue15daysbeforehearing
Courthearing
Submissionofdocuments
Witnesses
OpeningandClosingArguments

Issuanceofdecision
Reserveorwaiveappeal


GeneralCounselsOffice ICE
DifferentattorneyforeachMC
AttorneywhoispresentatMCwhen
caseissetformeritsgenerallyhandles
case
Rarelysubmitevidenceotherthan
criminalrecordorStateDept.human
rightsreport.


Prepareanopeningstatementtolayoutthe
casefortheIJ
PrepareatrialbrieffortheCourt
TalktotheTAbefore thehearingtoseeifthey
willstipulatetoanypoints
Refertoyourevidencewhilepresentingthe
case;dontmaketheCourtdigthroughpilesof
paper


ReadtheImmigrationCourtPracticeManual
Bringextracopiesofkeydocuments
Prepareachronologicalhistoryofcase
Documenteachelementofthecase

 



Asylummaybegrantedtoanindividualwhomeetsthe
statutorydefinitionofrefugee:
Individualwhoisunableorunwillingtoreturntohernative
countrybecauseofpersecutionorawellfoundedfearoffuture
persecutionbasedonrace,religion,nationality,membershipina
particularsocialgroup,orpoliticalopinion.
Thepersecutionmustbebythegovernment,orindividualsthat
thegovernmentisunableorunwillingtocontrol.
INA101(a)(42);
Unmarriedchildrenunder21andspousecanbeincludedin
application

Checkforbarstoasylum(i.e.persecutor,seriouscrime,etc.)
FormI589



Applicantmustshowthatitismorelikelythan
notthatshewouldbetorturedifreturnedtoher
homecountry.
8CFR208.16(c)
Nobars



INA245(a),(c)
InspectedandadmittedorparoledintoUS,or
haveanapprovedVAWAselfpetition
Currentprioritydateormustbeanimmediate
relative
Notinadmissible



INA 245(i)allowsadjustmentwhen
otherwisenotable
Avoidsconsularprocessingandtheunlawful
presencebars
EnteredEWIorfailedtomaintainlawfulstatus
Wasthebeneficiaryorderivativeofany
petitionorlaborcertificationfiledbetween
10/01/199401/14/1998OR
01/14/199804/30/2001andbeneficiary
presentinUSon12/21/2000

Mustpaya$1000finetoadjuststatusin
theU.S.


 
Step1:FileI130withUSCIS,whichestablishesfamilial
relationship
Step2:FileAOSwithIJ
I485
I864orI864W
G325A
MedicalExam
Waiversforcertaingroundsofinadmissibilityavailable
Youmaybeabletoterminateremovalproceedings
afterI130hasbeenapprovedandproceedwithAOS
beforeUSCIS



INA240A(a)
Lawfuladmissionforpermanentresidenceforat
leastfiveyears
Continuousresidenceforsevenyears
LookoutforStopTimeRule
Noconvictionofanaggravatedfelony
Exerciseofdiscretion
FormEOIR42a



240A(b)
Continuousphysicalpresenceforthelasttenyears
Goodmoralcharacterduringthesetenyears
Nocrimesofmoralturpitudeoraggravated
felonies
Deportationorremovalwouldresultinextremeand
unusualhardshipforspouse,children,orparents
whoareUScitizensorLPRs
Forexample Financialsupport,seriousmedical
condition


ContinuousresidenceiscutunderINA
240A(d):
WhenthenoncitizenisservedwiththeNTA,
or
Whenhe/shecommitsanoffensereferredto
in212(a)(2)thatrendersthenoncitizen
inadmissibleunder212(a)(2)orremovable
under237(a)(2)or(4)


Permissiontoleaveinlieuofdeportation,INA240B
Atmastercalendarhearing
Concederemovabilityand
waiveappeal
Abilityandwillingnessto
depart
Favorablediscretionof
court
Upto120daystodepart

Atmeritshearing
PhysicalpresenceinU.S.
immediatelyprecedingserviceof
NoticetoAppear
Goodmoralcharacterfor5years
Notdeportableforaggravated
felonyorterrorismgrounds
Traveldocumentorabilityto
obtainone
Voluntarydeparturebond
Favorablediscretionofcourt
Upto90daystodepart





NationalImmigrationProject
http://nationalimmigrationproject.org

AmericanImmigrationLawyers
Association,http://aila.org
KurzbansImmigrationLaw
Sourcebook
ImmigrationLawandCrimes

THE UNIVERSITY OF TEXAS SCHOOL OF LAW

Presented:
Fundamentals of Immigration and Nationality Law
October 15, 2014
Austin, Texas

Introduction to Removal Proceedings

Barbara Hines
and
Stephanie Rodriguez Taylor

Continuing Legal Education 512-475-6700 www.utcle.org

10

11

12

13

14

15

Good Attorney, Esq.

Good Attorney, LLC.
111 Avenue Street
Austin, TX 700001

NON-DETAINED

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MIAMI, FLORIDA

In the Matter of:

Ms. NICE LADY
In Removal Proceedings

Immigration Judge Judy

)
)
)
)
)
)
)
)

File No.: A200-956-078

Next MCH: September 22, 2015 at 1:00 pm

MOTION FOR CHANGE OF VENUE

16

NOW COMES Respondent, Ms. Nice Lady, and hereby requests this Court to grant a
change of venue of her removal hearing from Miami, Florida to San Antonio, Texas, pursuant to
8 CFR Section 1003.20. In support of this motion, Respondent states:
1. Respondent is a native and citizen of Colombia.

Respondent was accorded Lawful

Permanent Resident status on April 17, 1981. A Notice to Appear (NTA) was served to her
on July 12, 2013.
2. Respondent is currently scheduled for a Master Calendar hearing on September 22, 2015 at 9
a.m. before Judge Judy.
3. Respondent currently resides at 1505 Nice Street, Austin, Texas, which falls within the
jurisdiction of the San Antonio, Texas Immigration Court of the Executive Office for
Immigration Review. She has resided at this address since 2000.
4. Respondent will suffer undue hardship if hearings are conducted in Miami, Florida, rather
than San Antonio, Texas. Travel to hearings in Miami, Florida would be an economic
hardship on Respondent.
5. Respondent admits allegations 1-5 and concedes removability. She designates Colombia as
the country for removal.
6. Respondent seeks relief under former INA 212(c) pursuant to 8 C.F.R. 1212.3.
7. ICE would not suffer any prejudice as a result of venue being changed to San Antonio,
Texas. The Immigration Judge has not yet heard testimony or considered other evidence in
this case. In addition, Respondent has admitted all allegations and conceded the charge.
8. This Motion is not filed for the purpose of delay but in the interest of justice and due process.

2
17

WHEREFORE, Respondent respectfully requests that the Court GRANT her Motion for Change
of Venue to San Antonio, Texas.

Dated: August 20, 2014

Respectfully submitted,
______________________________
Good Attorney, Esq.
Good Attorney, LLC.
111 Avenue Street
Austin, TX 700001

3
18

United States Department of Justice

Executive Office for Immigration Review
Immigration Court
Miami, Florida
In the Matter of:

Ms. Nice Lady

A 123 456 789

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of Respondents Motion for Change of Venue, it is HEREBY ORDERED
that the motion be GRANTED
DENIED because:
DHS does not oppose the motion.
The respondent does not oppose the motion.
A response to the motion has not been filed with the court.
Good cause has been established for the motion.
The court agrees with the reasons stated in the opposition to the motion.
The motion is untimely per ______________________.
Other:
Deadlines:
The application(s) for relief must be filed by ________________________________.
The respondent must comply with DHS biometrics instructions by _______________.
____________________________
Date

____________________________________
Immigration Judge
Certificate of Service

This document was served by: [ ] Mail

[ ] Personal Service
To: [ ] Alien
[ ] Alien c/o Custodial Officer
[ ] Aliens Atty/Rep [ ] DHS
Date: ________________________
By: Court Staff________________________

4
19

PROOF OF SERVICE
On

, I,

, served a copy of:

MOTION FOR CHANGE OF VENUE

and any attached pages to Department of Homeland Security, (U.S. Immigration and Customs
Enforcement ICE), by overnight express service, to the following address:
Office of the Principal Legal Advisor
Immigration and Customs Enforcement
U.S. Department of Homeland Security
333 S. Miami Avenue, Suite 200
Miami, Florida 33130
________________________________
Good Attorney, Esq.
Good Attorney, LLC.
111 Avenue Street
Austin, TX 700001
512-999-9999 Phone
512-000-0000 Fax

________________________
Date

5
20

Counsel for Respondent

Good Attorney
Good Attorneys, LLC.
1111 Fancy Law Rd.
Suite 501
Austin, Texas 78752
(512) 999-9999

Assistant Chief Counsel

Office of the Chief Counsel
U.S. Department of Homeland Security
8940 Fourwinds Drive
San Antonio, Texas 78239
(210) 967- 7050

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN ANTONIO, TEXAS

In the Matter of:

Ms. NICE LADY
In Removal Proceedings

Immigration Judge Judy

)
)
)
)
)
)
)
)

File No.: A200-956-078

Next MCH: September 22, 2015 at 1:00 pm

JOINT MOTION TO TERMINATE PROCEEDINGS

WITHOUT PREJUDICE

21

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN ANTONIO, TEXAS

IN THE MATTER OF
Ms. Nice Lady
Respondent
IN REMOVAL PROCEEDINGS

:
:
:
:
:
:
:

NON-DETAINED
FILE NO.:

A123-456-789

JOINT MOTION TO TERMINATE PROCEEDINGS

The Respondent, and the U.S. Department of Homeland Security, U.S. Immigration and
Customs Enforcement (Department), by and through their respective undersigned counsel, jointly
move the Immigration Court to terminate the instant proceedings in the above-captioned case to
allow the Respondent to pursue his application for adjustment of status before U.S. Citizenship and
Immigration Services (USCIS) based on an approved immigrant visa petition.
The parties agree that any termination pursuant to this motion is without prejudice and does
not constitute a final judgment rendered on the merits of any issue in these proceedings. Should
USCIS determine either that the Respondent is not eligible for adjustment of status, or that the
Respondent should be denied adjustment for any reason, the Respondent understands and agrees
that the Department may seek to have these proceedings reopened, or to commence removal
proceedings anew. See generally 8 C.F.R. 1239.2(c) (providing that dismissal shall be without
prejudice to the alien or the Department of Homeland Security).

2
22

The Respondent acknowledges his obligation to notify the USCIS in writing of each change
of address and new address within ten days from the date of such change pursuant to section 265 of
the Immigration and Nationality Act.
Based upon the forgoing, the parties request that the Immigration Court grant this joint
motion to terminate without prejudice.

Respectfully submitted,
On behalf of
U.S. Immigration and Customs Enforcement,
U.S. Department of Homeland Security

On behalf of the Respondent

Government Lady
Assistant Chief Counsel
8940 Fourwinds Dr.
San Antonio, Texas 78239

Good Attorney
Good Attorneys, LLC
1111 Fancy Law Rd.
Suite 501
Austin, Texas 78752

Date: ___________________

Date:___________________

3
23

United States Department of Justice

Executive Office for Immigration Review
Immigration Court
San Antonio, Texas
In the Matter of:

Ms. Nice Lady

A 123 456 789

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the Joint Motion to Terminate Proceedings Without Prejudice, it is HEREBY
ORDERED that the motion be GRANTED
DENIED
because:
DHS does not oppose the motion.
The respondent does not oppose the motion.
A response to the motion has not been filed with the court.
Good cause has been established for the motion.
The court agrees with the reasons stated in the opposition to the motion.
The motion is untimely per ______________________.
Other:
Deadlines:
The application(s) for relief must be filed by ________________________________.
The respondent must comply with DHS biometrics instructions by _______________.

____________________________
Date

____________________________________
Immigration Judge

Certificate of Service
This document was served by: [ ] Mail
[ ] Personal Service
To: [ ] Alien
[ ] Alien c/o Custodial Officer
[ ] Aliens Atty/Rep [ ] DHS
Date: ________________________
By: Court Staff________________________

4
24

Good Attorney, Esq.

Good Attorney, LLC
111 Avenue Street
Austin, TX 700001

NON-DETAINED

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN ANTONIO, TEXAS

In the Matter of:

Ms. NICE LADY
In Removal Proceedings

Immigration Judge Judy

)
)
)
)
)
)
)
)

File No.: A200-956-078

Next ICH: October 16, 2014 at 1:00 pm

INDEX AND SUPPORTING DOCUMENTS FOR FORM EOIR-42B

25

TABLE OF CONTENTS
TAB
A.

PAGES
Identification

Copy of Respondents Mexican Consular I.D. Card

B.

Physical Presence
1996
Copy of Ms. Nice Ladys sons Personal Immunization Record

Notarized Letter from Ms. Neighbor, with translation

Notarized Letter from Pastor of Our Lady of the Lord, stating that Ms. Nice
Lady and her family has been attending church services in Austin for the past
sixteen years

Notarized letter from Ms. Neighbor, stating that she has rented an apartment
to Ms. Nice Lady and family since 1996

1999
Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous St.,
Austin, TX 78752, dated February 1, 1999

Utility statement from the City of Austin for Ms. Nice Lady sent to 7200
Anonymous St. on February 3, 1999

Receipt for a money order for rent purchased by Ms. Nice Lady on March 2,
1999

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on March 4, 1999

10

Receipt for a money order for rent purchased by Ms. Nice Lady on April 2,
1999

11

Receipt for a money order for rent purchased by Ms. Nice Lady on May 1,
1999

12

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on May 8, 1999

13

ii

26

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on May 26, 1999

14

Rent notice for Ms. Nice Lady dated June 1, 1999

15

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on June 7, 1999

16

Receipt from rent payment dated June 30, 1999

17

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on July 7, 1999

18

Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous St.,
Austin, TX 78752, dated August 1, 1999

19

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on August 5, 1999

20

Bill from Southwestern Bell on August 9, 1999

21

Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous St.,
Austin, TX 78752, dated September 2, 1999

22

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., Austin, TX 78752 on September 7, 1999

23

Bill from Time Warner Cable sent to Ms. Nice Lady at 7200 Anonymous St.,
Austin, TX 78752 dated on September 30, 1999

24

Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous St.,
Austin, TX 78752, dated October 4, 1999

25

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on October 18, 1999

26

Bill from Time Warner Cable sent to Ms. Nice Lady at 7200 Anonymous St.
dated on October 18, 1999

27

Receipt from a bill payment to Southwestern Bell dated October 23, 1999

28

Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous St.,
Austin, TX 78752, dated November 1999

29

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on November 11, 1999

30

iii

27

Bill from Time Warner Cable sent to Ms. Nice Lady at 7200 Anonymous St.
showing payment date of November 24, 1999

31

Receipt for rent paid for Ms. Nice Ladys apartment located at 7200
Anonymous St., Austin, TX 78752 dated December 1, 1999

32

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St. on December 13, 1999

33

Subscriber's agreement with Phone Company located at 4447 Road, Austin,

TX 78722 signed by Ms. Nice Lady on December 15, 1999

34

Pay stubs for Ms. Nice Lady from MSB enterprises received on December 15,
December 22, and December 29, 1999

35

Austin Community College Student Identification Card for Ms. Nice Lady
with an expiration date of December 31, 1999

36

W-2s for Ms. Nice Lady from MSB enterprises for 1999

37

2000
Receipt for January rent paid by Ms. Nice Lady dated January 3, 2000

38

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 due March 10, 2000

39

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on March 14, 2000

40

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment date of April 26, 2000

41

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment date of April 26,
2000

42

Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous

Street, Austin, TX 78752, dated May 2, 2000

43

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment date of May 24,
2000

44

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment date of May 24, 2000

45

iv

28

Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous

Street, Austin, TX 78752, dated June 5, 2000

46

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated June 9, 2000

47

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on June 14, 2000

48

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on July 14, 2000

49

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on July 15, 2000

50

Receipt for rent paid at Lovely Apartments, located at 7200 Anonymous

Street, Austin, TX 78752, dated August 1, 2000

51

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated August 9, 2000

52

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on August 14, 2000

53

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated September 8, 2000

54

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on October 1,
2000

55

Receipt for October rent paid by Ms. Nice Lady dated October 2, 2000

56

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated October 6, 2000

57

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on October 29,
2000

58

Receipt for November rent from Ms. Nice Lady dated November 2, 2000

59

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated November 8, 2000

60

29

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on November 13, 2000

61

Receipt for December rent paid by Ms. Nice Lady dated December 1, 2000

62

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated December 8, 2000

63

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on December 16,
2000

64

2001
Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on January 29,
2001

65

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on January 29, 2001

66

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on showing payment on February
26, 2001

67

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on February 26, 2001

68

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on March 18,
2001

69

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on March 18, 2001

70

Service receipt from Time Warner Cable for services performed at 7200
Anonymous St., Austin, TX 78752 and signed by Ms. Nice Lady on March
31, 2001

71

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on April 14, 2001

72

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on April 28, 2001

73

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30

Receipt from a Western Union money transfer sent by Ms. Nice Lady at Fiesta
on 3909 North I-35, Austin, TX 78722 on April 28, 2001

74

Receipt from a Western Union money transfer sent by Ms. Nice Lady at Fiesta
on 3909 North I-35, Austin, TX 78722 on May 8, 2001

75

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on May 29, 2001

76

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on June 28, 2001

77

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on June 28, 2001

78

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated July 6, 2001

79

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated August 10, 2001

80

Receipt for Ms. Nice Lady for payment of $60.00 at Manos de Cristo located
at 1201 E. First, Austin, TX 78702 on August 17, 2001

81

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on August 26,
2001

82

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on September 16, 2001

83

Receipt for Ms. Nice Lady for payment of $15.00 dated September 20, 2001

84

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on September 30,
2001

85

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated October 01, 2001

86

Subpoena addressed to Ms. Nice Lady at 7200 Anonymous St., Austin, TX

78752 requesting her appearance at court as a witness and dated November
16, 2001

87

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on December 23, 2001

88

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31

2002
Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated January 10, 2002

89

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on January 14, 2002

90

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated February 06, 2002

91

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on February 24,
2002

92

Texas Highway Patrol Association pledge collection notice sent to Ms. Nice
Lady at 7200 Anonymous St, Austin, TX 78752 dated on March 12, 2002

93

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on March 16, 2002

94

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated April 9, 2002

95

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on April 12, 2002

96

Account Balance from Verizon Wireless sent to Ms. Nice Lady at 7200
Anonymous [sic] Ave., Austin, TX 78752 dated April 16, 2002

97

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated May 8, 2002

98

Texas State Troopers Association pledge agreement sent to Ms. Nice Lady at
7200 Anonymous St., Austin, TX 78752 dated June 24, 2002

99

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on June 24, 2002

100

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated July 9, 2002

101

Bill from Verizon Wireless sent to Ms. Nice Lady at 7200 Anonymous St.,
Austin, TX 78752 dated July 16, 2002

102

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32

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on August 5, 2002

103

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 showing payment on August 16, 2002

104

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on September 29,
2002

105

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on October 14, 2002

106

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on November 18,
2002

107

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated December 07, 2002

108

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on December 20,
2002

109

Prescription information for a prescription filled at Northeast Austin

Pharmacy located at 7112 Ed Bluestein, Austin, TX 78723 dated December
20, 2002

110

Sams Club Membership information, showing Ms. Nice Ladas cardholder

from December 8, 2002

111

2003
Bill from Verizon Wireless sent to Ms. Nice Lady at 7200 Anonymous St.,
Austin, TX 78752 and dated January 13, 2003

112

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 on January 14, 2003

113

Receipt from a Western Union money transfer sent by Ms. Nice Lady listing
her address as 7200 Anonymous St. Austin, TX 78752 and dated January 19,
2003

114

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#122, Austin, TX 78752 dated March 04, 2003

115

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33

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #122, Austin, TX 78752 showing payment on April 14. 2003

116

Shipping receipt for CDs sent to Ms. Nice Lady at 7200 Anonymous St.,
Austin, TX 78752 dated April 30, 2003

117

Installation receipt from Time Warner Cable signed by Ms. Nice Lady on
June 3, 2003

118

Bill from Verizon Wireless sent to Ms. Nice Lady at 7200 Anonymous St.,
Austin, TX 78752 and dated July 13, 2003

119

Bill from Verizon Wireless sent to Ms. Nice Lady at 7200 Anonymous St.,
Austin, TX 78752 and dated August 13, 2003

120

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St. ,
#229, Austin, TX 78752 dated September 06, 2003

121

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated October 3, 2003

122

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated October 10, 2003

123

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated October 17, 2003

124

Receipt for October rent paid by Ms. Nice Lady on October 22, 2003

125

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated October 24, 2003

126

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated October 31, 2003

127

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated November 7, 2003

128

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated November 14, 2003

129

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated November 28, 2003

130

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated December 5, 2003

131

34

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated December 12, 2003

132

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated December 26, 2003

133

2004
Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated January 2, 2004

134

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated February 6, 2004

135

Receipt made out to Ms. Nice Lady for taxes dated February 9, 2004

136

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #229, Austin, TX 78752 showing payment on February 9,
2004

137

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated February 13, 2004

138

Pay stub from Red Roof Inns addressed to Ms. Nice Lady at 7200 Anonymous
St., Austin, TX 78752 dated February 20, 2004

139

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #229, Austin, TX 78752 on April 14, 2004

140

Report from a doctor's visit where Ms. Nice Lady was the responsible party
listing her address as 7200 Anonymous St., Austin, TX 78752 and dated April
28, 2004

141

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#229, Austin, TX 78752 dated May 5, 2004

142

Receipt from Verizon Wireless for a cell plan purchased by Ms. Nice Lady
dated May 31, 2004

143

Bill from Time Warner cable sent to Ms. Nice Lady at 7200 Anonymous St.,
#229, Austin, TX 78752 showing payment on June 5, 2004

144

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #229, Austin, TX 78752 showing payment on June 5, 2004

145

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35

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #229, Austin, TX 78752 showing payment on July 13, 2004

146

Receipt from a purchase at Best Buy located in Austin TX, 78759 made by
Ms. Nice Lady on July 11, 2004

147

Utility statement from the City of Austin sent to Ms. Nice Lady at 7200
Anonymous St., #229, Austin, TX 78752 on September 14, 2004

148

Letter of Reference from Austin Energy showing service for Ms. Nice Lady at
1111 Big Rd. Unit 106, Austin, TX 78752 from September 20, 2004 to
December 10

149

2005
Apartment Lease Contract signed by Ms. Nice Lady for apartment 107 located
at 1111 Big Rd., Austin, TX 78752 from September 29, 2004 to September
30, 2005 and signed on September 29, 2004

150

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated July 13, 2005

152

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 dated December 6, 2005

153

W-2s from MSB Enterprises for Ms. Nice Lady listing her address as 1111
Big Rd. #107, Austin, TX 78752 for 2005

154

2006
Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 showing payment on January 10, 2006

155

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 showing payment on February 12, 2006

156

Receipts from Ms. Nice Lady for rent dated February 8, 2006 and May 10,
2006

157

Photo development receipt from HEB for Ms. Nice Lady listing her address as
1111 Big Rd., Austin, TX 78752 and dated October 29, 2006

158

Receipt for Ms. Nice Lady for payment of $300.00 dated December 13, 2006

159

W-2s from MSB Enterprises for Ms. Nice Lady listing her address as 1111
Big Rd. #107, Austin, TX 78752 for 2006

160

2007

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Maternity Clinic Appointment Card for Ms. Nice Lady listing her address as
1111 Big Rd., Austin, TX 78752 and dated February 27, 2007

161

Texas Tollways Invoice sent to Ms. Nice Lady at 1111 Big Rd., Austin, TX
78752 on March 4, 2007

162

Wire transfer receipt from Star Check Cashing located at 7208 Cameron Rd.,
Austin, TX 78752 made out to Ms. Nice Lady and dated March 12, 2007

163

Physician's report for Ms. Nice Lady dated April 6, 2007

164

Texas Tollways Invoice sent to Ms. Nice Lady at 1111 Big Rd., Austin, TX
78752 on May 2, 2007

165

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on May 4, 2007

166

Wire transfer receipt from Star Check Cashing located at 7208 Cameron Rd.,
Austin, TX 78752 made out to Ms. Nice Lady and dated May 9, 2007

167

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated May 15, 2007

168

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on June 6, 2007

169

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated June 13, 2007

170

Receipt for Ms. Nice Lady for June rent dated June 18, 2007

171

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on July 6, 2007

172

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on December 6, 2007

173

2008
Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on January 8, 2008

174

Letter from Chase bank sent to Ms. Nice Lady at 1111 Big Rd., Austin, TX
78752 dated January 28, 2008

175

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37

Lease contract signed by Ms. Nice Ladys husband and listing her as a
resident for apartment 107 located at 1111 Big Rd., Austin, TX 78752 from
January 30, 2008 to February 1, 2009 and signed on February 1, 2008

176

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on August 6, 2008

177

Community Health Centers of Austin/Travis County card for Ms. Nice Lady
valid from October 10, 2007 to October 10, 2008

178

Immunization record for Ms. Nice Lady dated November 14, 2008

179

Work order from Time Warner Cable for Ms. Nice Lady listing her address as
1111 Big Rd., Austin, TX 78752 and signed on December 28, 2008

180

2009
Lease contract signed by Ms. Nice Ladys husband and listing her as a
resident for apartment 107 located at 1111 Big Rd., Austin, TX 78752 from
March 1, 2009 to March 31, 2010 and signed on March 1, 2009

181

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on April 6, 2009

182

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated April 16, 2009

183

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on July 7, 2009

184

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on August 6, 2009

185

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated August 16, 2009

186

2010
Austin Independent School District report card for Ms. Nice Ladys son dated
February 19, 2010

187

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on May 6, 2010

188

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107
dated May 16, 2010

189

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38

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on June 4, 2010

190

Earnings statement from Ms. Nice Lady listing her address as 1111 Big Rd.,
Austin, TX 78752 with a pay date of June 30, 2010

191

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on July 7, 2010

192

Time card from Ms. Nice Ladys work from July 16, 2010 to July 31, 2010

193

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on August 5, 2010

194

Time card from Ms. Nice Ladys work from August 1, 2010 to August 15,
2010

195

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated August 16, 2010

196

Time card from Ms. Nice Ladys work from September 1, 2010 to September
15, 2010

197

Earnings statement from Ms. Nice Lady listing her address as 1111 Big Rd.,
Austin, TX 78752 with a pay date of September 15, 2010

198

Time card from Ms. Nice Ladys work from September 16, 2010 to
September 30, 2010

199

Earnings statement from Ms. Nice Lady listing her address as 1111 Big Rd.,
Austin, TX 78752 with a pay date of September 30, 2010

200

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated October 17, 2010

201

Time card from Ms. Nice Ladys work from October 16, 2010 to October 31,
2010

202

Earnings statement from Ms. Nice Lady listing her address as 1111 Big Rd.,
Austin, TX 78752 with a pay date of November 1, 2010

203

Earnings statement from Ms. Nice Lady listing her address as 1111 Big Rd.,
Austin, TX 78752 with a pay date of November 30, 2010

204

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39

C.

Utility statement from the City of Austin sent to Ms. Nice Lady at 1111 Big
Rd., #107, Austin, TX 78752 on December 6, 2010

205

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated December 17, 2010

206

2011
Utility statement from the City of Austin sent to Ms. Nice Lady at 2222 Furry
Hill Dr., #B-102, Austin, TX 78752 on January 3, 2011

207

Bill from Time Warner cable sent to Ms. Nice Lady at 1111 Big Rd., #107,
Austin, TX 78752 dated February 17, 2011

208

Bill from Time Warner cable sent to Ms. Nice Lady at 2222 Furry Hill Dr.,
#B-102, Austin, TX 78752 dated February 26, 2011

209

Receipt from Time Warner Cable signed by Ms. Nice Lady listing her address
as 2222 Furry Hill Dr., #B-102, Austin, TX 78752 and dated March 29, 2011

210

Utility statement from the City of Austin sent to Ms. Nice Lady at 2222 Furry
Hill Dr., #B-102, Austin, TX 78752 on April 1, 2011

211

Bill from Time Warner cable sent to Ms. Nice Lady at 2222 Furry Hill Dr.,
#B-102, Austin, TX 78752 dated April 16, 2011

212

Utility statement from the City of Austin sent to Ms. Nice Lady at 2222 Furry
Hill Dr., #B-102, Austin, TX 78752 on May 2, 2011

213

2012
Letter of reference from Austin Energy for Ms. Nice Lady indicating she
received services from them at 2222 Furry Hill Dr., Austin, TX 78752 from
December 21, 2010 to present and dated March 12, 2012

214

Good Moral Character

Copy of Information and Judgment in Case No. 10-CR-742(01)-LY, showing
Ms. Nice Lady was convicted of buying a social security card on June 13,
2011

215

Sworn notarized letter from Ms. Good Friend, with copy of her Texas Driver
License and Social Security Card

219

I have so much respect and [am] thankful for what [Ms. Nice Lady] has done for my
family.

Notarized letter from Ms. Other Good Friend, with copy of her Texas ID card
and Social Security Card

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40

Notarized letter from Ms. Good Friend, with copy of her Texas ID

223

Notarized letter from Mr. Good Friend, with copy of his Texas ID

225

Notarized letter from Mr. Good Friend, with copy of his US passport card

227

I have known Ms. Nice Lady for the last ten years and in my opinion I think as a person she
is hard working, honest, responsible, a good wife and mother as anybody I have ever known.

Notarized letter from Ms. Good Friend, with copy of her Texas Driver License

229

Persons like Ms. Nice Lady., in my opinion should be given a chance to prosper and live life
to the fullest here in our country.

Notarized letter from Mr. Smart Teacher, Academic Dean, John H. Reagan
Early College High School

230

Letter from Ms. Smart Teacher, teacher at Reagan High School in Austin,
Texas

231

Ive known Ms. Nice Lady since 200 and Ive never met such a family orientated woman.

Letter from Mr. Smart Teacher, teacher at Reagan High School in Austin,
Texas

232

Big Boy [Ms. Nice Ladys son] is a hard working, responsible young man and that comes
from an excellent parent that has raised and taught him well. It was my privilege to teach
him and I wish I had a hundred parents like Ms. Nice Lady.

Letter from Mr. Smart Teacher, teacher at Reagan High School in Austin,
Texas

233

Letter from Mr. Smart Teacher, teacher at Reagan High School in Austin,
Texas, with copy of his U.S. passport

234

I give his mother, Ms. Nice Lady credit for doing an above-average job of raising her son in
a tough neighborhood. We need more parents like her who are involved and making a
difference in their childrens education.

Letter from Ms. Smart Teacher, teacher at Reagan High School in Austin,
Texas, with copy her Austin Independent School District I.D. card

236

[Ms. Nice Lady] is an involved parent who wants only the best for her children, she believes
that education is important and continually pushed Victor to do his best.

D.

Hardship
Copy of Ms. Nice Ladys US Citizen daughters birth certificate

237

Copy of Ms. Nice Ladys US Citizen sons birth certificate

238

Copy of Ms. Nice Ladys son's birth certificate, with certified translation
(Ms. Nice Ladys son, Big Boy, is currently eligible for Deferred Action for
Childhood Arrivals)

239

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41

Letter from Sick Kids Clinic dated September 10, 2012, stating that Ms. Nice
Lady is currently breast feedings her US citizen daughter, and that her U.S.
citizen daughter has been referred to Physical Therapy for delayed milestones,
dated September 10, 2012

242

Prognosis Summary from Important Lady, PT, DPT detailing Ms. Nice
Ladys daughter, Baby Girl's, need for physical therapy because of
developmental delays and hypotonia, dated September 13, 2012

243

Informational sheet from the National Health Service (UK), on Hypotonia,

available at: http://www.nhs.uk/conditions/hypotonia/Pages/Introduction.aspx

244

U.S. Department of State Country Reports on Human Rights Practices 2011,

"Mexico," available at:
http://www.state.gov/g/drl/rls/hrrpt/2010/sca/154480.htm

248

Kidnapping remained a serious problem for persons of all socioeconomic levels. The
government reported a 78.8 percent increase in kidnappings compared with 2008.
The minimum daily wages, determined by zone, were 57.46 pesos ($4.65) in Zone A (Baja
California, Federal District, State of Mexico, and large cities); 55.84 pesos ($4.52) in Zone B
(Sonora, Nuevo Leon, Tamaulipas, Veracruz, and Jalisco); and 54.47 ($4.41) in Zone C (all
other municipalities.

U.S. Department of State, Bureau of Consular Affairs, Travel Warning:

Mexico (February 8, 2012)

284

CIA World Factbook, Mexico

294

Listing possible underemployment rate as high as 25%, listing more than 51% of the
population as living below the food based definition of poverty

CIA World Factbook, United States

311

Listing unemployment rate as 9% and 15% of the population as living below the poverty line

Human Rights Watch Country Summary, Mexico, January 2012

329

Approximately 18,000 migrants are kidnapped annually, often with the aim of extorting
payments from their relatives in the United States.

Associated Press, At least 23 people killed in Mexican border city as victims

hanged, decapitated, May 5, 2012

335

Reynolds, Migrants in Mexico at Risk of Mass Kidnapping, Torture, Abuse,

Amnesty International: Human Rights Now (July 15, 2011)

336

Associated Press, 17 mutilated bodies found on farm in central Mexico

region plagued by drug violence, September 16, 2012

338

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Michelle L. Saenz-Rodriguez, Saenz-Rodriguez & Associates,

P.C. - Dallas, TX
Jacqueline L. Watson, Law Office of Thomas Esparza, Jr.,
P.C. - Austin, TX

TAB 05

Immigration Case Management and Beginning Ethics

THE UNIVERSITY OF TEXAS SCHOOL OF LAW

Presented:
Fundamentals of Immigration and Nationality Law
October 15, 2014
Austin, TX

Immigration Case Management and Beginning Ethics

Michelle L. Saenz-Rodriguez
Jacqueline L. Watson

Author contact information:

Michelle L. Saenz-Rodriguez
Saenz-Rodriguez and Assoc., P.C.
Dallas, TX
214-646-1208
michelle@sralawonline.com
Jacqueline L. Watson
Law Office of Thomas Esparza, Jr., P.C.
Austin, TX
512-441-0062
Jackie@tomesparza.com

Continuing Legal Education 512-475-6700 www.utcle.org

Dual Representation
Introduction
The path to legal status in the United States is in most cases is based upon the
dependence of one party upon another, whether in employment or family based
situations. Self-sponsorship in immigration matters is the exception and not the rule; thus,
dual representation is for most immigration practitioners a necessary evil.
In the daily life of an immigration lawyer, most cases involving dual representation
continue to their happy conclusion without a glitch. Every day, the majority of our clients
receive their H-1B, labor cert, visa petition, or permanent residency with a minimum of
heartache; however, when problems in a dual representation situation do arise, they can
bring to bear devastating consequences for the attorney and client alike.
Rules of professional conduct do not directly address dual representation except in the
context of conflict of interest. Dual representation is not outright prohibited under most
rules, in recognition of the myriad of legal transactions in which two or more parties can
proceed with one legal counsel toward a common end: partnerships, adoption, family
wills, joint ventures, and, of course, visa petitions. Rules of professional conduct do treat
conflict of interest seriously and expect that attorneys faced with a conflict of interest be
able to immediately recognize the conflict and take remedial action.
Dual Representation and Professional Responsibility
There are certain basic duties that a lawyer owes the client. These responsibilities are
common to most professional conduct codes and form the foundation of the attorneyclient relationship. A lawyers professional responsibility to each client may be affected
by the nature of the multiple-party representation in that the duty owed to each client may
be complicated or, in some cases, compromised when more than one client is represented
in a single matter. The professional responsibilities that are most obviously affected are:
Loyalty The duty of loyalty is mentioned foremost in the comments to the
conflicts rule in both the ABA Model Rules and the Texas Rules of Professional
Conduct. A duty of loyalty to a client demands that the attorney remain faithful to
the interests of the client above all others. When a conflict of interest develops in
a dual representation, it is the duty of loyalty that requires an attorney to forego
the representation of either client. When the clients interests become directly
adverse or even detrimental to each other, rather than betray the loyalty to one
client over the other, the attorney must withdraw and refer each client to a
separate lawyer who can remain completely loyal to thee clients new interests.
Confidentiality Every attorney is bound to safeguard client confidences. Because
of the presence of another client in the traditional attorney-client relationship, the
confidentiality of communication in a dual representation is no longer a
guarantee. The attorney may continue to keep the information confidential, but
each client may use any information garnered during the representation however
he or she sees fit.

Privilege The privilege associated with attorney-client information belongs to the

client and can only be waived by the client. The matter of privilege is greatly
complicated with dual clients, each claiming privilege over information gathered
in the course of the representation. The potential exists in a dual representation for
an attorney to one day be called to testify about the representation, to the benefit
of one client and the detriment of the other, while privilege is properly waived by
the one of the clients.
Communication An attorney must keep a client reasonable informed about the
status of the case. In many dual representation scenarios, however, the temptation
is ever-present to deal exclusively with one party over the other. In addition, it is
often more time-efficient to relay information to one client with the expectation
that he or she will in turn relay the information to the other client. Regardless of
the best intentions of an attorney to streamline communications, the end result can
be that one client is vastly more informed about the proceedings than the other.
The less informed client may feel aggrieved, as was the situation in the attached
case, DePape v. Blumenfeld, 242 F.Supp 2d 385 (N.D. Iowa, 2003).

Other Considerations in Dual Representation

Other factors complicating the dual representation situation are not directly related to the
lawyers professional responsibilities. These factors should nonetheless be kept in mind
when undertaking cases where dual representation will be necessary so as to understand
and anticipate points where conflict can arise:
Sophistication of the parties Not every case involves two clients with the same
level of familiarity with the U.S. legal system. In employment-based cases,
especially, it is probable that the U.S. employer has had extensive experience in
immigrating non-citizen employees. In the situation where one client is clearly
more savvy about immigration proceedings, it may be necessary to devote more
attention to explanations to the less experienced client to avoid any
misunderstanding about the process.
Power balance between the clients Whether in family-based or employmentbased cases, there may be a perception between the clients that one party (usually
the petitioner) is in a better position than the other (usually the beneficiary). This
inherent imbalance of power in the relationship, whether real or apparent, may be
further complicated by the matter of who is paying the fee for the attorneys
services. It is best practice to assure each party in the representation that the
attorney gives each client equal importance in the matter at hand.
Inability to understand the lawyers role in the representation Clients involved
in a dual representation, even if experienced and educated, may not be able to
comprehend the lawyers restricted options in the event of a conflict of interest.
The nature of dual representation, the possibility of conflict of interest, and the
lawyers responsibility to each client should a conflict arise must be explained to
each client at the outset of the representation. If caught unawares after a conflict
has arisen, a client may feel confused and aggrieved at the remedial actions taken
by the attorney.

Mitigating Problems with Dual Representation

As long as dual representation is an unavoidable consequence of immigration law
practice, so too is the potential for conflict. Taking lessons from others, such as in the
DePape case, the importance of mitigating problems with dual representation at the
beginning of the representation is as important as how the attorney addresses the
problems later. The following suggestions may not be foolproof in the avoidance of
conflicts in the dual representation, but they will help limit the shock and anger that a
client may feel at the actions of the attorney caught in the middle of a conflict:
Full disclosure As noted in the comment to the Texas Rules of Professional
Conduct regarding conflict, disclosure is not a formality. Clients in a dual
representation scenario are entitled to be fully apprised of the potential for conflict
in their case as well as the attorneys responsibility once a conflict arises. It is
even better practice to explain the unique nature of the dual representation and its
impact on the attorneys duties to each client.
Education The clients should be educated about the representation at the
appropriate level, taking into account each clients sophistication with the subject.
It may not suffice to give every client a boilerplate explanation of the nature of
the dual representation if there is a disparity in the ability to truly understand
amongst the clients. The time spent educating the clients at the outset may help
avoid time-consuming problems later in the case.
Independent judgment Both clients are deserving of objective legal advice. This
includes a complete assessment about the options that best suit the interests of
both parties. The importance of keeping paying clients happy should not cloud the
judgment of the attorney in this regard.
Truthfulness A concept related to the idea of independent judgment is
truthfulness. While informing clients of potential risks and problems may be an
uncomfortable exercise, full disclosure requires discussion of good and bad
aspects of the case. Best practice is for both clients to be prepared for worst case
scenarios with contingency plans, particularly with border crossings and consular
interviews, when counsel may not be readily accessible.
Client consent After being presented with all the relevant considerations, an
attorney should require the clients consent to the dual representation. The most
effective consent is in writing, with copies provided to all parties.

Hypotheticals
1. Husband #1 and Wife come into your office to discuss a visa petition by Husband #1,
who is an LPR, on behalf of Wife. You consult with Husband and Wife for one hour.
They hire you to file an I-130, which you do, but then lose contact with them. Four years
later, Wife returns to your office with Husband #2, also an LPR, but you do not
immediately recognize her and her name has changed. Wife does, however, disclose that
she was married once before to an LPR, but he had been abusive so she left him. Only
after you accept the representation and Husband #2 and Wife have left your office do you
realize that Wife and Husband #1 had previously visited you for a consultation.
Is there a conflict of interest between Husband #1 and Wife?
Suppose after the initial consultation with Husband #1 and Wife, you were not
hired, then lost contact with Husband #1 and wife for four years. Does your
answer change after reading the attached Texas Professional Ethics Opinion
(#494)?
Suppose Husband #1 was a USC, not an LPR. Does this change your answer?
Suppose Wife does not allege any abuse by Husband #1, and says they amicable
divorced. Conflict?
2. Mother hires you to file a NACARA application. She has a 20 year old Daughter. At
the time Mother hires you, you consult with both Mother and Daughter, and discover that
Daughter will be able to file as a NACARA dependent after the Mother is approved.
Mother agrees to this strategy, so you begin an expedited NACARA case. Six months
later, Mother returns to your office and tells you to withdraw her NACARA application
and instead wants to hire you to immigrate through Mothers new USC Husband, whom
she married six weeks ago. You inform Mother that by withdrawing your NACARA
application, Daughter will lose her eligibility for NACARA benefits. Mother says that
she cares not a whit.
Is there a conflict of interest between Mother and Daughter?
Is Daughter a client? Must you inform Daughter of Mothers new plan?
Can you accept the case for Mother and Husband?
3. You are handling the case of an undocumented woman in removal proceedings before
the Immigration Court. After proceedings were initiated, your client married a United
States citizen and had a child with him. You determined that, while the wife would
qualify for cancellation of removal for non-lawful permanent residents, adjustment of
status through the husband would be the easiest route for her to avoid removal and obtain
lawful permanent resident status. You helped the USC husband file an I-130 petition for
his wife, which was approved.
Shortly afterwards, you learn that the couple has
separated and intends to divorce but has not yet filed for divorce legally. You research
and learn that your client can still adjust status through the husband before the divorce
takes place, and you begin to prepare the adjustment of status application, including the
necessary affidavit of support. The affidavit of support is required to show that the wife
will not become a public charge in the United States. The I-130 petitioning sponsor must
sign the affidavit of support for the adjustment of status application to be approved even
4

if there are other financial sponsors who will also sign an affidavit of support. The
instructions to the relevant form state that the affidavit of support is a contract between a
sponsor and the U.S. Government and also clarify that the sponsor may be asked to
repay the cost of any public benefits subsequently received by the person sponsored.
Who should you understand to be your client(s) in this case?
Are there any conflict of interest or other ethical issues present in obtaining the
husbands signature on the affidavit of support?
If you decide to proceed to obtain his signature, how will you do so?
What if he expresses concern about the potential for liability based on the
affidavit of support?
Now assume that you have resolved the affidavit of support issue and intend to proceed
forward with adjustment of status. You have tried to schedule appointments with your
client to have her provide you with additional documents and information necessary for
the adjustment of status application. You also need her to provide the filing fee for the
application and sign the forms. She has cancelled three different appointments with you.
You have explained how important it is for her to come to the clinic offices so that you
can finalize and file the adjustment application. She always apologizes for her failure to
attend the appointments you have made with her but has not yet met with you.
What should you do? Can you withdraw? When? How?
Assume that you have finally met with your client, in the above scenario, and are ready to
move forward with the adjustment of status case. However, you then receive a call from
a criminal defense attorney who advises you that the USC husband is facing criminal
charges for assault (family violence) against his wife. The attorney is calling to ask about
the status of the immigration case in order to understand how it relates to the criminal
case.
What do you do? Can you continue your representation in the immigration case?
What do you tell husband and wife if you withdraw?
Can you give the wife information about immigration protections that exist for
women who are abused by their USC spouses?
4. You are working with a client who must establish continuous residence in the United
States for a lengthy period of time. When you ask your client questions about departures
from the United States, she tells you that she once traveled back to Guatemala for her
fathers funeral. She was picked up by immigration officials coming back to the United
States after the trip to Guatemala. She was apprehended at the border near Brownsville.
She gave another name, presented a fake Mexican voter card and said she was Mexican.
She was returned to Mexico and then returned without permission or inspection to the
United States. The attempted entry and immigration detention have never shown up in
the clients immigration file with the government, on any FBI RAP sheet or as a result of
the various security checks conducted by the government based on the clients biometric
information. You are in the process of preparing the application for relief to be filed
with the Immigration Court. The application asks about departures from the United
States and use of any other names.
How should you answer the questions on the application?
5

What if the client specifically asks you not to include any information about her
use of a false name or her trip to Guatemala?
What, if any, advice can you give the client about how to proceed?

Lets change the last scenario. Assume the client does not tell you about her travel to
Guatemala before the merits hearing in Immigration Court and so you do not include any
information about her false name or her travel to Guatemala on the application for relief.
At the hearing, on direct examination, you ask the client whether she has ever left the
United States after arriving here. She says that she has not. The client is then granted
relief by the Immigration Judge. After the hearing, the client comes to the clinic to thank
you for your help. The client says that she is pleased that neither the attorney for the
government nor the Immigration Judge ever learned about a trip to Guatemala that she
made to attend her fathers funeral. When you ask her why she never told you about this
trip to Guatemala and why she testified that she had never left the United States if she
had in fact traveled home, she tells you that she believed it was necessary to keep her trip
to Guatemala and earlier immigration stop hidden to get the immigration relief that she
desperately needed.
What should you do?
5. You have filed an asylum application on behalf of a client from Nepal who asserts a
fear of return to Nepal because of persecution that she suffered at the hands of the
Maoists based on her familys involvement in the Nepali Congress Party, which opposes
the Maoists, and her own involvement in a youth group known as the Nepal Students
Union, which is allied with the Nepali Congress.
Your client brings in a number of documents that you have asked her to obtain. These
documents include school records and a Nepali Student Union membership card as well
as a letter from the Nepali Student Union testifying to her membership and activism.
You have some concerns about the authenticity of the documents. Your client brings the
documents to you in a DHL envelope from Nepal, but she says that she does not
recognize the name of the sender. In addition, the letters from the Nepali Student Union
appear almost too good to be true since they reference her activism even though she has
never claimed to have been a high-profile member of the organization. Your concerns
are heightened, because there are numerous reports that Nepali asylum seekers sometimes
purchase fake documents to support their claims.
What should you do with the documents?
Assume that you have an Immigration Court filing deadline promptly approaching. You
have spoken with your client and conducted some investigation on your own, and you are
still not able to confirm the validity of the documents she has provided. You have
explained your concerns about the documents to your client. She has not provided any
explanations that would help to clarify the provenance of the documents and has insisted
that she believes that the documents are proper. At the same time, you have now
interviewed her multiple times about her experiences in Nepal, including a kidnapping
and horrific sexual abuse. Your client always tells her story consistently and provides

more details when asked; she gets very emotional telling the story and seems to have
experienced real trauma.
Do you submit the documents she has brought you to the Immigration Court?
Why or why not?
Next assume that you have decided that you will not submit the documents because they
are unreliable.
Will you continue forward with the asylum case anyway, using your clients
testimony and other country conditions evidence to support the claim? Why or
why not?
Would you consider withdrawal? Why or why not?
Finally, assume that you have decided to go forward with your clients testimony alone.
At the Immigration Court hearing, the attorney for the government asks your client on the
stand whether she made any efforts to obtain documents from the Nepali Student Union
about her involvement with the organization. Your client testifies that she has no
documents relating to her personal involvement with the Nepali Student Union.
What should you do, if anything?
6. Your client is a twenty-year old woman from the Democratic Republic of Congo
(DRC). She has been diagnosed by a clinical psychologist with moderate mental
retardation. She is able to communicate with you effectively and has managed to adjust
relatively well to her life in the United States, but her mental functioning is comparable to
that of a 10-year-old. Your clients father was associated with an opposition political
party that was brutally repressed by the government of the DRC.
Your clients father was imprisoned, and your client was raped by government forces in
DRC. Your client and her family, for a long time, believed that her father had been killed
in detention. In fact, two of your clients siblings obtained political asylum based in large
part on the fact that their father had been killed by the government. A month before the
asylum hearing in Immigration Court, you discover that your clients father is alive after
all and still in the DRC. You believe that it is crucial to contact the father to understand
what has happened to him and possibly to get a statement from him to support your
clients case. You are also anxious to contact him, because you are just a little confused
about how your client and her siblings could have failed to discover that their father was
alive. You cant help but wonder if the family might be keeping something from you.
Your client is adamantly opposed to making any efforts, directly or through you, to
contact her father. She argues that any such efforts would place her father in great danger
and could result in the death that he has thus far avoided. She also does not want her
father to know that she was raped and is afraid that he will learn of the rape if he is
contacted to provide information about her asylum claim.
What do you do?

TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT

Preamble: A Lawyer's Responsibilities
1. A lawyer is a representative of clients, an officer of the legal system and a public citizen having
special responsibility for the quality of justice. Lawyers, as guardians of the law, play a vital role in
the preservation of society. The fulfillment of this role requires an understanding by lawyers of their
relationship with and function in our legal system. A consequent obligation of lawyers is to maintain
the highest standards of ethical conduct.
2. As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a
client with an informed understanding of the clients legal rights and obligations and explains their
practical implications. As advocate, a lawyer zealously asserts the clients position under the rules of
the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent
with requirements of honest dealing with others. As intermediary between clients, a lawyer seeks to
reconcile their divergent interests as an advisor and, to a limited extent, as a spokesperson for each
client. A lawyer acts as evaluator by examining a client's affairs and reporting about them to the client
or to others.
3. In all professional functions, a lawyer should zealously pursue clients interests within the bounds
of the law. In doing so, a lawyer should be competent, prompt and diligent. A lawyer should maintain
communication with a client concerning the representation. A lawyer should keep in confidence
information relating to representation of a client except so far as disclosure is required or permitted by
the Texas Disciplinary Rules of Professional Conduct or other law.
4. A lawyers conduct should conform to the requirements of the law, both in professional service to
clients and in the lawyers business and personal affairs. A lawyer should use the laws procedures
only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate
respect for the legal system and for those who serve it, including judges, other lawyers and public
officials. While it is a lawyers duty, when necessary, to challenge the rectitude of official action, it is
also a lawyers duty to uphold legal process.
5. As a public citizen, a lawyer should seek improvement of the law, the administration of justice and
the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer
should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of
the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the
administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot
afford adequate legal assistance, and should therefore devote professional time and civic influence in
their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the
bar regulate itself in the public interest.
6. A lawyer should render public interest legal service. The basic responsibility for providing legal
services for those unable to pay ultimately rests upon the individual lawyer, and personal
involvement in the problems of the disadvantages can be one of the most rewarding experiences in the
life of a lawyer. Every lawyer, regardless of professional prominence or professional workload,
should find time to participate in or otherwise support the provision of legal services to the
8

disadvantaged. The provision of free legal services to those unable to pay reasonable fees is a moral
obligation of each lawyer as well as the profession generally. A lawyer may discharge this basic
responsibility by providing public interest legal services without fee, or at a substantially reduced fee,
in one or more of the following areas: poverty law, civil rights law, public rights law, charitable
organization representation, the administration of justice, and by financial support for organizations
that provide legal services to persons of limited means.
7. In the nature of law practice, conflicting responsibilities are encountered. Virtually all difficult
ethical problems arise from apparent conflict between a lawyers responsibilities to clients, to the
legal system and to the lawyers own interests. The Texas Disciplinary Rules of Professional Conduct
prescribe terms for resolving such tensions. They do so by stating minimum standards of conduct
below which no lawyer can fall without being subject to disciplinary action. Within the framework of
these Rules many difficult issues of professional discretion can arise. The Rules and their Comments
constitute a body of principles upon which the lawyer can rely for guidance in resolving such issues
through the exercise of sensitive professional and moral judgment. In applying these rules, lawyers
may find interpretive guidance in the principles developed in the Comments.
8. The legal profession has a responsibility to assure that its regulation is undertaken in the public
interest rather than in furtherance of parochial or self-interested concerns of the bar, and to insist that
every lawyer both comply with its minimum disciplinary standards and aid in securing their
observance by other lawyers. Neglect of these responsibilities compromises the independence of the
profession and the public interest which it serves.
9. Each lawyers own conscience is the touchstone against which to test the extent to which his
actions may rise above the disciplinary standards prescribed by these rules. The desire for the respect
and confidence of the members of the profession and of the society which it serves provides the
lawyer the incentive to attain the highest possible degree of ethical conduct. The possible loss of that
respect and confidence is the ultimate sanction. So long as its practitioners are guided by these
principles, the law will continue to be a noble profession. This is its greatness and its strength, which
permit of no compromise.
Preamble: Scope
10. The Texas Disciplinary Rules of Professional Conduct are rules of reason. The Texas Disciplinary
Rules of Professional Conduct define proper conduct for purposes of professional discipline. They are
imperatives, cast in the terms shall or shall not. The comments are cast often in the terms of may or
should and are permissive, defining areas in which the lawyer has professional discretion. When a
lawyer exercises such discretion, whether by acting or not acting, no disciplinary action may be taken.
The Comments also frequently illustrate or explain applications of the rules, in order to provide
guidance for interpreting the rules and for practicing in compliance with the spirit of the rules. The
Comments do not, however, add obligations to the rules and no disciplinary action may be taken for
failure to conform to the Comments.
11. The rules presuppose a larger legal context shaping the lawyers role. That context includes court
rules and statutes relating to matters of licensure, laws defining specific obligations of lawyers and
9

substantive and procedural law in general. Compliance with the rules, as with all law in an open
society, depends primarily upon understanding and voluntary compliance, secondarily upon
reinforcement by peer and public opinion and finally, when necessary, upon enforcement through
disciplinary proceedings. The rules and Comments do not, however, exhaust the moral and ethical
considerations that should guide a lawyer, for no worthwhile human activity can be completely
defined by legal rules.
12. Most of the duties flowing from the client-lawyer relationship attach only after the client has
requested the lawyer to render legal services and the lawyer has agreed to do so. For purposes of
determining the lawyers authority and responsibility, individual circumstances and principles of
substantive law external to these rules determine whether a client-lawyer relationship may be found to
exist. But there are some duties, such as of that of confidentiality, that may attach before a clientlawyer relationship has been established.
13. The responsibilities of government lawyers, under various legal provisions, including
constitutional, statutory and common law, may include authority concerning legal matters that
ordinarily reposes in the client in private client-lawyer relationships. For example, a lawyer for a
government agency may have authority on behalf of the government to decide upon settlement or
whether to appeal from an adverse judgment. Such authority in various respects is generally vested in
the attorney general and the states attorney in state government, and their federal counterparts, and
the same may be true of other government law officers. Also, lawyers under the supervision of these
officers may be authorized to represent several government agencies in intragovernmental legal
controversies in circumstances where a private lawyer could not represent multiple private clients.
They also may have authority to represent the public interest in circumstances where a private lawyer
would not be authorized to do so. These rules do not abrogate any such authority.
14. These rules make no attempt to prescribe either disciplinary procedures or penalties for violation
of a rule.
15. These rules do not undertake to define standards of civil liability of lawyers for professional
conduct. Violation of a rule does not give rise to a private cause of action nor does it create any
presumption that a legal duty to a client has been breached. Likewise, these rules are not designed to
be standards for procedural decisions. Furthermore, the purpose of these rules can be abused when
they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a
lawyers self-assessment, or for sanctioning a lawyer under the administration of a disciplinary
authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to
seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any
substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.
16. Moreover, these rules are not intended to govern or affect judicial application of either the
attorney-client or work product privilege. The fact that in exceptional situations the lawyer under the
Rules has a limited discretion to disclose a client confidence does not vitiate the proposition that, as a
general matter, the client has a reasonable expectation that information relating to the client will not
be voluntarily disclosed and that disclosure of such information may be judicially compelled only in
accordance with recognized exceptions to the attorney-client and work product privileges.
10

Terminology
Adjudicatory Official denotes a person who serves on a Tribunal.
Adjudicatory Proceeding denotes the consideration of a matter by a Tribunal.
Belief or Believes denotes that the person involved actually supposed the fact in question to be
true. A persons belief may be inferred from circumstances.
Competent or Competence denotes possession or the ability to timely acquire the legal
knowledge, skill, and training reasonably necessary for the representation of the client.
Consult or Consultation denotes communication of information and advice reasonably sufficient
to permit the client to appreciate the significance of the matter in question.
Firm or Law firm denotes a lawyer or lawyers in a private firm; or a lawyer or lawyers employed
in the legal department of a corporation, legal services organization, or other organization, or in a unit
of government.
Fitness denotes those qualities of physical, mental and psychological health that enable a person to
discharge a lawyers responsibilities to clients in conformity with the Texas Disciplinary Rules of
Professional Conduct. Normally a lack of fitness is indicated most clearly by a persistent inability to
discharge, or unreliability in carrying out, significant obligations.
Fraud or Fraudulent denotes conduct having a purpose to deceive and not merely negligent
misrepresentation or failure to apprise another of relevant information.
Knowingly, Known, or Knows denotes actual knowledge of the fact in question. A persons
knowledge may be inferred from circumstances.
Law firm : see Firm.
Partner denotes an individual or corporate member of a partnership or a shareholder in a law firm
organized as a professional corporation.
Person includes a legal entity as well as an individual.
Reasonable or Reasonably when used in relation to conduct by a lawyer denotes the conduct of a
reasonably prudent and competent lawyer.
Reasonable belief or Reasonably believes when used in reference to a lawyer denotes that the
lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
Should know when used in reference to a lawyer denotes that a reasonable lawyer under the same or
similar circumstances would know the matter in question.
Substantial when used in reference to degree or extent denotes a matter of meaningful significance
or involvement.
Tribunal denotes any governmental body or official or any other person engaged in a
process of resolving a particular dispute or controversy. Tribunal includes such
institutions as courts and administrative agencies when engaging in adjudicatory or
licensing activities as defined by applicable law or rules of practice or procedure, as well
as judges, magistrates, special masters, referees, arbitrators, mediators, hearing officers
and comparable persons empowered to resolve or to recommend a resolution of a
particular matter; but it does not include jurors, prospective jurors, legislative bodies or
their committees, members or staffs, nor does it include other governmental bodies when
acting in a legislative or rule-making capacity.
*****
Rule 1.02 Scope and Objectives of Representation
11

(a) Subject to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a clients decisions:
(1) concerning the objectives and general methods of representation;
(2) whether to accept an offer of settlement of a matter, except as otherwise authorized by law;
(3) In a criminal case, after consultation with the lawyer, as to a plea to be entered, whether to waive
jury trial, and whether the client will testify.
(b) A lawyer may limit the scope, objectives and general methods of the representation if the client
consents after consultation.
(c) A lawyer shall not assist or counsel a client to engage in conduct that the lawyer knows is criminal
or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a
client and may counsel and represent a client in connection with the making of a good faith effort to
determine the validity, scope, meaning or application of the law.
(d) When a lawyer has confidential information clearly establishing that a client is likely to commit a
criminal or fraudulent act that is likely to result in substantial injury to the financial interests or
property of another, the lawyer shall promptly make reasonable efforts under the circumstances to
dissuade the client from committing the crime or fraud.
(e) When a lawyer has confidential information clearly establishing that the lawyers client has
committed a criminal or fraudulent act in the commission of which the lawyers services have been
used, the lawyer shall make reasonable efforts under the circumstances to persuade the client to take
corrective action.
(f) When a lawyer knows that a client expects representation not permitted by the rules of professional
conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the
lawyers conduct.
(g) A lawyer shall take reasonable action to secure the appointment of a guardian or other legal
representative for, or seek other protective orders with respect to, a client whenever the lawyer
reasonably believes that the client lacks legal competence and that such action should be taken to
protect the client.
Comment:
Scope of Representation
1. Both lawyer and client have authority and responsibility in the objectives and means of
representation. The client has ultimate authority to determine the objectives to be served by legal
representation, within the limits imposed by law, the lawyers professional obligations, and the agreed
scope of representation. Within those limits, a client also has a right to consult with the lawyer about
the general methods to be used in pursuing those objectives. The lawyer should assume responsibility
for the means by which the clients objectives are best achieved. Thus, a lawyer has very broad
discretion to determine technical and legal tactics, subject to the clients wishes regarding such
matters as the expense to be incurred and concern for third persons who might be adversely affected.
2. Except where prior communications have made it clear that a particular proposal would be
12

unacceptable to the client, a lawyer is obligated to communicate any settlement offer to the client in a
civil case; and a lawyer has a comparable responsibility with respect to a proposed plea bargain in a
criminal case.
3. A lawyer should consult with the client concerning any such proposal, and generally it is for the
client to decide whether or not to accept it. This principle is subject to several exceptions or
qualifications. First, in class actions a lawyer may recommend a settlement of the matter to the court
over the objections of named plaintiffs in the case. Second, in insurance defense cases a lawyers
ability to implement an insured clients wishes with respect to settlement may be qualified by the
contractual rights of the insurer under its policy. Finally, a lawyers normal deference to a clients
wishes concerning settlement may be abrogated if the client has validly relinquished to a third party
any rights to pass upon settlement offers. Whether any such waiver is enforceable is a question largely
beyond the scope of these rules. But see comment 5 below. A lawyer reasonably relying on any of
these exceptions in not implementing a clients desires concerning settlement is, however, not subject
to discipline under this Rule.
Limited Scope of Representation
4. The scope of representation provided by a lawyer may be limited by agreement with the client or by
the terms under which the lawyers services are made available to the client. For example, a retainer
may be for a specifically defined objective. Likewise, representation provided through a legal aid
agency may be subject to limitations on the types of cases the agency handles. Similarly when a
lawyer has been retained by an insurer to represent an insured, the representation may be limited to
matters related to the insurance coverage. The scope within which the representation is undertaken
also may exclude specific objectives or means, such as those that the lawyer or client regards as
repugnant or imprudent.
5. An agreement concerning the scope of representation must accord with the Texas Disciplinary
Rules of Professional Conduct and other law. Thus, the client may not be asked to agree to
representation so limited in scope as to violate Rule 1.01, or to surrender the right to terminate the
lawyers services or the right to settle or continue litigation that the lawyer might wish to handle
differently.
6. Unless the representation is terminated as provided in Rule 1.15, a lawyer should carry through to
conclusion all matters undertaken for a client. If a lawyers representation is limited to a specific
matter or matters, the relationship terminates when the matter has been resolved. If a lawyer has
represented a client over a substantial period in a variety of matters, the client may sometimes assume
that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice to the
contrary. Doubt about whether a client-lawyer relationship still exists should be clarified by the
lawyer, preferably in writing, so that the client will not mistakenly suppose the lawyer is looking after
the clients affairs when the lawyer has ceased to do so. For example, if a lawyer has handled a
judicial or administrative proceeding that produced a result adverse to the client but has not been
specifically instructed concerning pursuit of an appeal, the lawyer should advise the client of the
possibility of appeal before relinquishing responsibility for the matter.
Criminal, Fraudulent and Prohibited Transactions
13

7. A lawyer is required to give an honest opinion about the actual consequences that appear likely to
result from a clients conduct. The fact that a client uses advice in a course of action that is criminal or
fraudulent does not, of itself, make a lawyer a party to the course of action. However, a lawyer may
not knowingly assist a client in criminal or fraudulent conduct. There is a critical distinction between
presenting an analysis of legal aspects of questionable conduct and recommending the means by
which a crime or fraud might be committed with impunity.
8. When a clients course of action has already begun and is continuing, the lawyers responsibility is
especially delicate. The lawyer may not reveal the clients wrongdoing, except as permitted or
required by Rule 1.05. However, the lawyer also must avoid furthering the clients unlawful purpose,
for example, by suggesting how it might be concealed. A lawyer may not continue assisting a client in
conduct that the lawyer originally supposes is legally proper but then discovers is criminal or
fraudulent. Withdrawal from the representation, therefore, may be required. See Rule 1.15(a)(1)
9. Paragraph (c) is violated when a lawyer accepts a general retainer for legal services to an enterprise
known to be unlawful. Paragraph (c) does not, however, preclude undertaking a criminal defense
incident to a general retainer for legal services to a lawful enterprise.
10. The last clause of paragraph (c) recognizes that determining the validity or interpretation of a
statute or regulation may require a course of action involving disobedience of the statute or regulation
or of the interpretation placed upon it by governmental authorities.
11. Paragraph (d) requires a lawyer in certain instances to use reasonable efforts to dissuade a client
from committing a crime or fraud. If the services of the lawyer were used by the client in committing
a crime or fraud paragraph (e) requires the lawyer to use reasonable efforts to persuade the client to
take corrective action.
Client Under a Disability
1. Paragraph (a) assumes that the lawyer is legally authorized to represent the client. The usual
attorney-client relationship is established and maintained by consenting adults who possess the legal
capacity to agree to the relationship. Sometimes the relationship can be established only by a legally
effective appointment of the lawyer to represent a person. Unless the lawyer is legally authorized to
act for a person under a disability, an attorney-client relationship does not exist for the purpose of this
rule.
2. If a legal representative has already been appointed for the client, the lawyer should ordinarily look
to the representative for decisions on behalf of the client. If a legal representative has not been
appointed, paragraph (g) requires a lawyer in some situations to take protective steps, such as
initiating the appointment of a guardian. The lawyer should see to such appointment or take other
protective steps when it reasonably appears advisable to do so in order to serve the clients best
interests. See Rule 1.05 (c)(4), d(1) and (d)(2)(i) in regard to the lawyers right to reveal to the court
the facts reasonably necessary to secure the guardianship or other protective order.
Rule 1.03 Communication

14

(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply
with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
Comment:
1. The client should have sufficient information to participate intelligently in decisions concerning the
objectives of the representation and the means by which they are to be pursued, to the extent the client
is willing and able to do so. For example, a lawyer negotiating on behalf of a client should provide the
client with facts relevant to the matter, inform the client of communications from another party and
take other reasonable steps to permit the client to make a decision regarding a serious offer from
another party. A lawyer who receives from opposing counsel either an offer of settlement in a civil
controversy or a proffered plea bargain in a criminal case should promptly inform the client of its
substance unless prior discussions with the client have left it clear that the proposal will be
unacceptable. See Comment 2 to Rule 1.02.
2. Adequacy of communication depends in part on the kind of advice or assistance involved. For
example, in negotiations where there is time to explain a proposal the lawyer should review all
important provisions with the client before proceeding to an agreement. In litigation a lawyer should
explain the general strategy and prospects of success and ordinarily should consult the client on tactics
that might injure or coerce others. On the other hand, a lawyer ordinarily cannot be expected to
describe trial or negotiation strategy in detail. Moreover, in certain situations practical exigency may
require a lawyer to act for a client without prior consultation. The guiding principle is that the lawyer
should reasonably fulfill client expectations for information consistent with the duty to act in the
clients best interests, and the clients overall requirements as to the character of representation.
3. Ordinarily, the information to be provided is that appropriate for a client who is a comprehending
and responsible adult. However, fully informing the client according to this standard may be
impractical, as for example, where the client is a child or suffers from mental disability; see paragraph
5. When the client is an organization or group, it is often impossible or inappropriate to inform every
one of its members about its legal affairs; ordinarily, the lawyer should address communications to the
appropriate officials of the organization. See Rule 1.13.
Where many routine matters are involved, a system of limited or occasional reporting may be
arranged with the client.
Withholding Information
4. In some circumstances, a lawyer may be justified in delaying transmission of information when the
lawyer reasonably believes the client would be likely to react imprudently to an immediate
communication. Thus, a lawyer might withhold a psychiatric diagnosis of a client when the examining
psychiatrist indicates that disclosure would harm the client. Similarly, rules or court orders governing
litigation may provide that information supplied to a lawyer may not be disclosed to the client. Rule
3.04(d) sets forth the lawyers obligations with respect to such rules or orders. A lawyer may not,
however, withhold information to serve the lawyers own interest or convenience.
15

Client Under a Disability

5. In addition to communicating with any legal representative, a lawyer should seek to maintain
reasonable communication with a client under a disability, insofar as possible. When a lawyer
reasonably believes a client suffers a mental disability or is not legally competent, it may not be
possible to maintain the usual attorney-client relationship. Nevertheless, the client may have the
ability to understand, deliberate upon, and reach conclusions about some matters affecting the clients
own well being. Furthermore, to an increasing extent the law recognizes intermediate degrees of
competence. For example, childrens opinions regarding their own custody are given some weight.
The fact that a client suffers a disability does not diminish the desirability of treating the client with
attention and respect. See also Rule 1.02(e) and Rule 1.05, Comment
17.
*****
Rule 1.05 Confidentiality of Information
(a) Confidential information includes both privileged information and unprivileged client information.
Privileged information refers to the information of a client protected by the lawyer-client privilege of
Rule 5.03 of the Texas Rules of Evidence or of Rule 5.03 of the Texas Rules of Criminal Evidence or
by the principles of attorney-client privilege governed by Rule
5.01 of the Federal Rules of Evidence for United States Courts and Magistrates. Unprivileged client
information means all information relating to a client or furnished by the client, other than privileged
information, acquired by the lawyer during the course of or by reason of the representation of the
client.
(b) Except as permitted by paragraphs (c) and (d), or as required by paragraphs (e), and (f), a lawyer
shall not knowingly:
1) Reveal confidential information of a client or a former client to:
(i) a person that the client has instructed is not to receive the information; or
(ii) anyone else, other than the client, the clients representatives, or the members, associates, or
employees of the lawyers law firm.
2) Use confidential information of a client to the disadvantage of the client unless the client consents
after consultations.
(3) Use confidential information of a former client to the disadvantage of the former client after the
representation is concluded unless the former client consents after consultation or the confidential
information has become generally known.
(4) Use privileged information of a client for the advantage of the lawyer or of a third person, unless
the client consents after consultation.
(c) A lawyer may reveal confidential information:
(1) When the lawyer has been expressly authorized to do so in order to carry out the representation.
(2) When the client consents after consultation.
(3) To the client, the clients representatives, or the members, associates, and employees of the
lawyers firm, except when otherwise instructed by the client.
(4) When the lawyer has reason to believe it is necessary to do so in order to comply with a court
order, a Texas Disciplinary Rule of Professional Conduct, or other law.
(5) To the extent reasonably necessary to enforce a claim or establish a defense on behalf of the
16

lawyer in a controversy between the lawyer and the client.

(6) To establish a defense to a criminal charge, civil claim or disciplinary complaint against the
lawyer or the lawyers associates based upon conduct involving the client or the representation of the
client.
(7) When the lawyer has reason to believe it is necessary to do so in order to prevent the client from
committing a criminal or fraudulent act.
(8) To the extent revelation reasonably appears necessary to rectify the consequences of a clients
criminal or fraudulent act in the commission of which the lawyers services had been used.
(d) A lawyer also may reveal unprivileged client information.
(1) When impliedly authorized to do so in order to carry out the representation.
(2) When the lawyer has reason to believe it is necessary to do so in order to:
(i) carry out the representation effectively;
(ii) defend the lawyer or the lawyers employees or associates against a claim of wrongful conduct;
(iii) respond to allegations in any proceeding concerning the lawyers representation of the client; or
(iv) prove the services rendered to a client, or the reasonable value thereof, or both, in an action
against another person or organization responsible for the payment of the fee for services rendered to
the client.
(e) When a lawyer has confidential information clearly establishing that a client is likely to commit a
criminal or fraudulent act that is likely to result in death or substantial bodily harm to a person, the
lawyer shall reveal confidential information to the extent revelation reasonably appears necessary to
prevent the client from committing the criminal or fraudulent act.
(f) A lawyer shall reveal confidential information when required to do so by Rule 3.03(a)(2), 3.03(b),
or by Rule 4.01(b).
Comment:
Confidentiality Generally
1. Both the fiduciary relationship existing between lawyer and client and the proper functioning of the
legal system require the preservation by the lawyer of confidential information of one who has
employed or sought to employ the lawyer. Free discussion should prevail between lawyer and client
in order for the lawyer to be fully informed and for the client to obtain the
full benefit of the legal system. The ethical obligation of the lawyer to protect the confidential
information of the client not only facilitates the proper representation of the client but also encourages
potential clients to seek early legal assistance.
2. Subject to the mandatory disclosure requirements of paragraphs (e) and (f) the lawyer generally
should be required to maintain confidentiality of information acquired by the lawyer during the course
of or by reason of the representation of the client. This principle involves an ethical obligation not to
use the information to the detriment of the client or for the benefit of the lawyer or a third person. In
regard to an evaluation of a matter affecting a client for use by a third person, see Rule 2.02.

17

3. The principle of confidentiality is given effect not only in the Texas Disciplinary Rules of
Professional Conduct but also in the law of evidence regarding the attorney-client privilege and in the
law of agency. The attorney-client privilege, developed through many decades, provides the client a
right to prevent certain confidential communications from being revealed by compulsion of law.
Several sound exceptions to confidentiality have been developed in the evidence law of privilege.
Exceptions exist in evidence law where the services of the lawyer were sought or used by a client in
planning or committing a crime or fraud as well as where issues have arisen as to breach of duty by
the lawyer or by the client to the other.
4. Rule 1.05 reinforces the principles of evidence law relating to the attorney-client privilege. Rule
1.05 also furnishes considerable protection to other information falling outside the scope of the
privilege Rule 1.05 extends ethical protection generally to unprivileged information relating to the
client or furnished by the client during the course of or by reason of the representation of the client. In
this respect Rule 1.05 accords with general fiduciary principles of agency.
5. The requirement of confidentiality applies to government lawyers who may disagree with the
policy goals that their representation is designed to advance.
Disclosure for Benefit of Client
6. A lawyer may be expressly authorized to make disclosures to carry out the representation and
generally is recognized as having implied-in-fact authority to make disclosures about a client when
appropriate in carrying out the representation to the extent that the clients instructions do not limit
that authority. In litigation, for example, a lawyer may disclose information by admitting a fact that
cannot properly be disputed, or in negotiation by making a disclosure that facilitates a satisfactory
conclusion. The effect of Rule 1.05 is to require the lawyer to invoke, for the client, the attorney-client
privilege when applicable; but if the court improperly denies the privilege, under paragraph (c)(4) the
lawyer may testify as ordered by the court or may test the ruling as permitted by Rule 3.04(d).
7. In the course of a firms practice, lawyers may disclose to each other and to appropriate employees
information relating to a client, unless the client has instructed that particular information be confined
to specified lawyers. Sub-paragraphs (b)(l) and (c)(3) continue these practices concerning disclosure
of confidential information within the firm.
Use of Information
8. Following sound principles of agency law, sub-paragraphs (b)(2) and (4) subject a lawyer to
discipline for using information relating to the representation in a manner disadvantageous to the
client or beneficial to the lawyer or a third person, absent the informed consent of the client. The duty
not to misuse client information continues after the client-lawyer relationship has terminated.
Therefore, the lawyer is forbidden by sub-paragraph (b)(3) to use, in absence of the clients informed
consent, confidential information of the former client to the clients disadvantage, unless the
information is generally known.
Discretionary Disclosure Adverse to Client
9. In becoming privy to information about a client, a lawyer may foresee that the client intends serious
and perhaps irreparable harm. To the extent a lawyer is prohibited from making disclosure, the
18

interests of the potential victim are sacrificed in favor of preserving the clients information-usually
unprivileged information-even though the clients purpose is wrongful. On the other hand, a client
who knows or believes that a lawyer is required or permitted to disclose a clients wrongful purposes
may be inhibited from revealing facts which would enable the lawyer to counsel effectively against
wrongful action. Rule 1.05 thus involves balancing the interests of one group of potential victims
against those of another. The criteria provided by the Rule are discussed below.
10. Rule 5.03 (d)(l) Texas Rules of Civil Evidence (Tex. R. Civ. Evid.), and Rule 5.03(d)(1), Texas
Rules of Criminal Evidence (Tex R. Crim. Evid.), indicate the underlying public policy of furnishing
no protection to client information where the client seeks or uses the services of the lawyer to aid in
the commission of a crime or fraud. That public policy governs the dictates of Rule 1.05. Where the
client is planning or engaging in criminal or fraudulent conduct or where the culpability of the
lawyers conduct is involved, full protection of client information is not justified.
11. Several other situations must be distinguished. First, the lawyer may not counsel or assist a client
in conduct that is criminal or fraudulent. See Rule 1.02(c). As noted in the Comment to that Rule there
can be situations where the lawyer may have to reveal information relating to the representation in
order to avoid assisting a clients criminal or fraudulent conduct, and subparagraph (c)(4) permits
doing so. A lawyers duty under Rule 3.03(a) not to use false or fabricated evidence is a special
instance of the duty prescribed in Rule 1.02(c) to avoid assisting a client in criminal or fraudulent
conduct, and sub-paragraph (c)(4) permits revealing information necessary to comply with Rule
3.03(a) or (b). The same is true of compliance with Rule 4.01. See also paragraph (f).
12. Second, the lawyer may have been innocently involved in past conduct by the client that was
criminal or fraudulent. In such a situation the lawyer has not violated Rule 1.02(c), because to counsel
or assist criminal or fraudulent conduct requires knowing that the conduct is of that character. Since
the lawyers services were made an instrument of the clients crime or fraud, the lawyer has a
legitimate interest both in rectifying the consequences of such conduct and in avoiding charges that
the lawyers participation was culpable. Sub-paragraph (c)(6) and (8) give the lawyer professional
discretion to reveal both unprivileged and privileged information in order to serve those interests. See
paragraph (g). In view of Tex. R. Civ. Evid. Rule 5.03(d)(1), and Tex. R. Crim. Evid. 5.03(d)(1),
however, rarely will such information be privileged.
13. Third, the lawyer may learn that a client intends prospective conduct that is criminal or fraudulent.
The lawyers knowledge of the clients purpose may enable the lawyer to prevent commission of the
prospective crime or fraud. When the threatened injury is grave, the lawyers interest in preventing the
harm may be more compelling than the interest in preserving confidentiality of information. As stated
in sub-paragraph (c)(7), the lawyer has professional discretion, based on reasonable appearances, to
reveal both privileged and unprivileged information in order to prevent the clients commission of any
criminal or fraudulent act. In some situations of this sort, disclosure is mandatory. See paragraph (e)
and Comments 18-20.
14. The lawyers exercise of discretion under paragraphs (c) and (d) involves consideration of such
factors as the magnitude, proximity, and likelihood of the contemplated wrong, the nature of the
19

lawyers relationship with the client and with those who might be injured by the client, the lawyers
own involvement in the transaction, and factors that may extenuate the clients conduct in question. In
any case a disclosure adverse to the clients interest should be no greater than the lawyer believes
necessary to the purpose. Although preventive action is permitted by paragraphs (c) and (d), failure to
take preventive action does not violate those paragraphs. But see paragraphs (e) and (f). Because these
rules do not define standards of civil liability of lawyers for professional conduct, paragraphs (c) and
(d) do not create a duty on the lawyer to make any disclosure and no civil liability is intended to arise
from the failure to make such disclosure.
15. A lawyer entitled to a fee necessarily must be permitted to prove the services rendered in an action
to collect it, and this necessity is recognized by sub-paragraphs (c)(5) and (d)(2)(iv). This aspect of
the rule, in regard to privileged information, expresses the principle that the beneficiary of a fiduciary
relationship may not exploit the relationship to the detriment of the fiduciary. Any disclosure by the
lawyer, however, should be as protective of the clients interests as possible.
16. If the client is an organization, a lawyer also should refer to Rule 1.12 in order to determine the
appropriate conduct in connection with this Rule.
Client Under a Disability
17. In some situations, Rule 1.02(g) requires a lawyer representing a client under a disability to seek
the appointment of a legal representative for the client or to seek other orders for the
protection of the client. The client may or may not, in a particular matter, effectively consent to the
lawyers revealing to the court confidential information and facts reasonably necessary to secure the
desired appointment or order. Nevertheless, the lawyer is authorized by paragraph (c)(4) to reveal
such information in order to comply with Rule 1.02(g). See also paragraph 5, Comment to Rule 1.03.
Mandatory Disclosure Adverse to Client
18. Rule l.05(e) and (f) place upon a lawyer professional obligations in certain situations to make
disclosure in order to prevent certain serious crimes by a client or to prevent involvement by the
lawyer in a clients crimes or frauds. Except when death or serious bodily harm is likely to result, a
lawyers obligation is to dissuade the client from committing the crime or fraud or to persuade the
client to take corrective action; see Rule 1.02 (d) and (e).
19. Because it is very difficult for a lawyer to know when a clients criminal or fraudulent purpose
actually will be carried out, the lawyer is required by paragraph (e) to act only if the lawyer has
information clearly establishing the likelihood of such acts and consequences. If the information
shows clearly that the clients contemplated crime or fraud is likely to result in death or serious injury,
the lawyer must seek to avoid those lamentable results by revealing information necessary to prevent
the criminal or fraudulent act. When the threatened crime or fraud is likely to have the less serious
result of substantial injury to the financial interests or property of another, the lawyer is not required
to reveal preventive information but may do so in conformity to paragraph (c) (7). See also paragraph
(f); Rule 1.02 (d) and (e); and Rule 3.03 (b) and (c).
20. Although a violation of paragraph (e) will subject a lawyer to disciplinary action, the lawyers
20

decisions whether or how to act should not constitute grounds for discipline unless the lawyers
conduct in the light of those decisions was unreasonable under all existing circumstances as they
reasonably appeared to the lawyer. This construction necessarily follows from the fact that paragraph
(e) bases the lawyers affirmative duty to act on how the situation reasonably appears to the lawyer,
while that imposed by paragraph (f) arises only when a lawyer knows that the lawyers services have
been misused by the client. See also Rule 3.03(b).
Withdrawal
21. If the lawyers services will be used by the client in materially furthering a course of criminal or
fraudulent conduct, the lawyer must withdraw, as stated in Rule l.l5(a)(l). After withdrawal, a
lawyers conduct continues to be governed by Rule 1.05. However, the lawyers duties of disclosure
under paragraph (e) of the Rule, insofar as such duties are mandatory, do not survive the end of the
relationship even though disclosure remains permissible under paragraphs (6), (7), and (8) if the
further requirements of such paragraph are met. Neither this Rule nor Rule
1.15 prevents the lawyer from giving notice of the fact of withdrawal, and no rule forbids the lawyer
to withdraw or disaffirm any opinion, document, affirmation, or the like.
Other Rules
22. Various other Texas Disciplinary Rules of Professional Conduct permit or require a lawyer to
disclose information relating to the representation. See Rules 1.07, 1.12, 2.02, 3.03 and
4.01. In addition to these provisions, a lawyer may be obligated by other provisions of statutes or
other law to give information about a client. Whether another provision of law supersedes Rule 1.05 is
a matter of interpretation beyond the scope of these Rules, but sub-paragraph (c)(4) protects the
lawyer from discipline who acts on reasonable belief as to the effect of such laws.
Rule 1.06 Conflict of Interest: General Rule
(a) A lawyer shall not represent opposing parties to the same litigation.
(b) In other situations and except to the extent permitted by paragraph (c), a lawyer shall not represent
a person if the representation of that person:
(1) involves a substantially related matter in which that persons interests are materially and directly
adverse to the interests of another client of the lawyer or the lawyers firm; or
(2) reasonably appears to be or become adversely limited by the lawyers or law firm's responsibilities
to another client or to a third person or by the lawyers or law firms own interests.
(c) A lawyer may represent a client in the circumstances described in (b) if:
(1) the lawyer reasonably believes the representation of each client will not be materially affected; and
(2) each affected or potentially affected client consents to such representation after full disclosure of
the existence, nature, implications, and possible adverse consequences of the common representation
and the advantages involved, if any.
(d) A lawyer who has represented multiple parties in a matter shall not thereafter represent any of
such parties in a dispute among the parties arising out of the matter, unless prior consent is obtained
from all such parties to the dispute.
21

(e) If a lawyer has accepted representation in violation of this Rule, or if multiple representation
properly accepted becomes improper under this Rule, the lawyer shall promptly withdraw from one or
more representations to the extent necessary for any remaining representation not to be in violation of
these Rules.
(f) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer
while a member or associated with that lawyer's firm may engage in that conduct.
Comment:
Loyalty to a Client
1. Loyalty is an essential element in the lawyers relationship to a client. An impermissible conflict of
interest may exist before representation is undertaken, in which event the representation should be
declined. If such a conflict arises after representation has been undertaken, the lawyer must take
effective action to eliminate the conflict, including withdrawal if necessary to rectify the situation. See
also Rule 1.16. When more than one client is involved and the lawyer withdraws because a conflict
arises after representation, whether the lawyer may continue to represent any of the clients is
determined by this Rule and Rules 1.05 and 1.09. See also Rule 1.07(c). Under this Rule, any conflict
that prevents a particular lawyer from undertaking or continuing a representation of a client also
prevents any other lawyer who is or becomes a member of or an associate with that lawyers firm
from doing so. See paragraph (f).
2. A fundamental principle recognized by paragraph (a) is that a lawyer may not represent opposing
parties in litigation. The term opposing parties as used in this Rule contemplates a situation where a
judgment favorable to one of the parties will directly impact unfavorably upon the other party.
Moreover, as a general proposition loyalty to a client prohibits undertaking representation directly
adverse to the representation of that client in a substantially related matter unless that clients fully
informed consent is obtained and unless the lawyer reasonably believes that the lawyers
representation will be reasonably protective of that clients interests. Paragraphs (b) and (c) express
that general concept.
Conflicts in Litigation
3. Paragraph (a) prohibits representation of opposing parties in litigation. Simultaneous representation
of parties whose interests in litigation are not actually directly adverse but where the potential for
conflict exists, such as co-plaintiffs or co-defendants, is governed by paragraph (b). An impermissible
conflict may exist or develop by reason of substantial discrepancy in the partys testimony,
incompatibility in positions in relation to an opposing party or the fact that there are substantially
different possibilities of settlement of the claims or liabilities in question. Such conflicts can arise in
criminal cases as well as civil. The potential for conflict of interest in representing multiple
defendants in a criminal case is so grave that ordinarily a lawyer should decline to represent more than
one co-defendant. On the other hand, common representation of persons having similar interests is
proper if the risk of adverse effect is minimal and the requirements of paragraph (b) are met. Compare
Rule 1.07 involving intermediation between clients.
Conflict with Lawyers Own Interests
22

4. Loyalty to a client is impaired not only by the representation of opposing parties in situations
within paragraphs (a) and (b)(l) but also in any situation when a lawyer may not be able to consider,
recommend or carry out an appropriate course of action for one client because of the
lawyers own interests or responsibilities to others. The conflict in effect forecloses alternatives that
would otherwise be available to the client. Paragraph (b)(2) addresses such situations. A potential
possible conflict does not itself necessarily preclude the representation. The critical questions are the
likelihood that a conflict exists or will eventuate and, if it does, whether it will materially and
adversely affect the lawyers independent professional judgment in considering alternatives or
foreclose courses of action that reasonably should be pursued on behalf of the client. It is for the client
to decide whether the client wishes to accommodate the other interest involved. However, the clients
consent to the representation by the lawyer of another whose interests are directly adverse is
insufficient unless the lawyer also believes that there will be no materially adverse effect upon the
interests of either client. See paragraph (c).
5. The lawyers own interests should not be permitted to have adverse effect on representation of a
client, even where paragraph (b)(2) is not violated. For example, a lawyers need for income should
not lead the lawyer to undertake matters that cannot be handled competently and at a reasonable fee.
See Rules 1.01 and 1.04. If the probity of a lawyers own conduct in a transaction is in question, it
may be difficult for the lawyer to give a client detached advice. A lawyer should not allow related
business interests to affect representation, for example, by referring clients to an enterprise in which
the lawyer has an undisclosed interest.
Meaning of Directly Adverse
6. Within the meaning of Rule 1.06(b), the representation of one client is directly adverse to the
representation of another client if the lawyers independent judgment on behalf of a client or the
lawyers ability or willingness to consider, recommend or carry out a course of action will be or is
reasonably likely to be adversely affected by the lawyers representation of, or responsibilities to, the
other client. The dual representation also is directly adverse if the lawyer reasonably appears to be
called upon to espouse adverse positions in the same matter or a related matter. On the other hand,
simultaneous representation in unrelated matters of clients whose interests are only generally adverse,
such as competing economic enterprises, does not constitute the representation of directly adverse
interests. Even when neither paragraph (a) nor (b) is applicable, a lawyer should realize that a
business rivalry or personal differences between two clients or potential clients may be so important
to one or both that one or the other would consider it contrary to its interests to have the same lawyer
as its rival even in unrelated matters; and in those situations a wise lawyer would forego the dual
representation.
Full Disclosure and Informed Consent
7. A client under some circumstances may consent to representation notwithstanding a conflict or
potential conflict. However, as indicated in paragraph (c)(l), when a disinterested lawyer would
conclude that the client should not agree to the representation under the circumstances, the lawyer
involved should not ask for such agreement or provide representation on the basis of the clients
consent. When more than one client is involved, the question of conflict must be resolved as to each
client. Moreover, there may be circumstances where it is impossible to make the full disclosure
23

necessary to obtain informed consent. For example, when the lawyer represents different clients in
related matters and one of the clients refuses to consent to the
disclosure necessary to permit the other client to make an informed decision, the lawyer cannot
properly ask the latter to consent.
8. Disclosure and consent are not formalities. Disclosure sufficient for sophisticated clients may not
be sufficient to permit less sophisticated clients to provide fully informed consent. While it is not
required that the disclosure and consent be in writing, it would be prudent for the lawyer to provide
potential dual clients with at least a written summary of the considerations disclosed.
9. In certain situations, such as in the preparation of loan papers or the preparation of a partnership
agreement, a lawyer might have properly undertaken multiple representation and be confronted
subsequently by a dispute among those clients in regard to that matter. Paragraph (d) forbids the
representation of any of those parties in regard to that dispute unless informed consent is obtained
from all of the parties to the dispute who had been represented by the lawyer in that matter.
10. A lawyer may represent parties having antagonistic positions on a legal question that has arisen in
different cases, unless representation of either client would be adversely affected. Thus, it is ordinarily
not improper to assert such positions in cases pending in different trial courts, but it may be improper
to do so in cases pending at the same time in an appellate court.
11. Ordinarily, it is not advisable for a lawyer to act as advocate against a client the lawyer represents
in some other matter, even if the other matter is wholly unrelated and even if paragraphs (a), (b) and
(d) are not applicable. However, there are circumstances in which a lawyer may act as advocate
against a client, for a lawyer is free to do so unless this Rule or another rule of the Texas Disciplinary
Rules of Professional Conduct would be violated. For example, a lawyer representing an enterprise
with diverse operations may accept employment as an advocate against the enterprise in a matter
unrelated to any matter being handled for the enterprise if the representation of one client is not
directly adverse to the representation of the other client. The propriety of concurrent representation
can depend on the nature of the litigation. For example, a suit charging fraud entails conflict to a
degree not involved in a suit for declaratory judgment concerning statutory interpretation.
Interest of Person Paying for a Lawyers Service
12. A lawyer may be paid from a source other than the client, if the client is informed of that fact and
consents and the arrangement does not compromise the lawyers duty of loyalty to the client. See Rule
1.08(e). For example, when an insurer and its insured have conflicting interests in a matter arising
from a liability insurance agreement, and the insurer is required to provide special counsel for the
insured, the arrangement should assure the special counsels professional independence. So also,
when a corporation and its directors or employees are involved in a controversy in which they have
conflicting interests, the corporation may provide funds for separate legal representation of the
directors or employees, if the clients consent after consultation and the arrangement ensures the
lawyers professional independence.
Non-litigation Conflict Situations
13. Conflicts of interest in contexts other than litigation sometimes may be difficult to assess.
Relevant factors in determining whether there is potential for adverse effect include the duration and
24

intimacy of the lawyers relationship with the client or clients involved, the functions being performed
by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from
the conflict if it does arise. The question is often one of proximity and degree.
14. For example, a lawyer may not represent multiple parties to a negotiation whose interests are
fundamentally antagonistic to each other, but common representation may be permissible where the
clients are generally aligned in interest even though there is some difference of interest among them.
15. Conflict questions may also arise in estate planning and estate administration. A lawyer may be
called upon to prepare wills for several family members, such as husband and wife, and, depending
upon the circumstances, a conflict of interest may arise. In estate administration it may be unclear
whether the client is the fiduciary or is the estate or trust including its beneficiaries. The lawyer
should make clear the relationship to the parties involved.
16. A lawyer for a corporation or other organization who is also a member of its board of directors
should determine whether the responsibilities of the two roles may conflict. The lawyer may be called
on to advise the corporation in matters involving actions of the directors. Consideration should be
given to the frequency with which such situations may arise, the potential intensity of the conflict, the
effect of the lawyers resignation from the board and the possibility of the corporations obtaining
legal advice from another lawyer in such situations. If there is material risk that the dual role will
compromise the lawyers independence of professional judgment, the lawyer should not serve as a
director.
Conflict Charged by an Opposing Party
17. Raising questions of conflict of interest is primarily the responsibility of the lawyer undertaking
the representation. In litigation, a court may raise the question when there is reason to infer that the
lawyer has neglected the responsibility. In a criminal case, inquiry by the court is generally required
when a lawyer represents multiple defendants. Where the conflict is such as clearly to call in question
the fair or efficient administration of justice, opposing counsel may properly raise the question. Such
an objection should be viewed with great caution, however, for it can be misused as a technique of
harassment. See Preamble: Scope.
17. Except when the absolute prohibition of this rule applies or in litigation when a court passes upon
issues of conflicting interests in determining a question of disqualification of counsel, resolving
questions of conflict of interests may require decisions by all affected clients as well as by the lawyer.
Rule 1.07 Conflict of Interest: Intermediary
(a) A lawyer shall not act as intermediary between clients unless:
(1) the lawyer consults with each client concerning the implications of the common representation,
including the advantages and risks involved, and the effect on the attorney-client privileges, and
obtains each clients written consent to the common representation;
(2) the lawyer reasonably believes that the matter can be resolved without the necessity of contested
litigation on terms compatible with the clients best interests, that each client will be able to make
adequately informed decisions in the matter and that there is little risk of material prejudice to the
25

interests of any of the clients if the contemplated resolution is unsuccessful; and

(3) the lawyer reasonably believes that the common representation can be undertaken impartially and
without improper effect on other responsibilities the lawyer has to any of the clients.
(b) While acting as intermediary, the lawyer shall consult with each client concerning the decision to
be made and the considerations relevant in making them, so that each client can make adequately
informed decisions.
(c) A lawyer shall withdraw as intermediary if any of the clients so requests, or if any of the
conditions stated in paragraph (a) is no longer satisfied. Upon withdrawal, the lawyer shall not
continue to represent any of the clients in the matter that was the subject of the intermediation.
(d) Within the meaning of this Rule, a lawyer acts as intermediary if the lawyer represents two or
more parties with potentially conflicting interests.
(e) If a lawyer would be prohibited by this Rule from engaging in particular conduct, no other lawyer
while a member of or associated with that lawyers firm may engage in that conduct.
Comment:
1. A lawyer acting as intermediary may seek to establish or adjust a relationship between clients on an
amicable and mutually advantageous basis. For example, the lawyer may assist in organizing a
business in which two or more clients are entrepreneurs, in working out the financial reorganization of
an enterprise in which two or more clients have an interest, in arranging a property distribution in
settlement of an estate or in mediating a dispute between clients. The lawyer seeks to resolve
potentially conflicting interests by developing the parties mutual interests. The alternative can be that
each party may have to obtain separate representation, with the possibility in some situations of
incurring additional cost, complication or even litigation. Given these and other relevant factors, all
the clients may prefer that the lawyer act as intermediary.
2. Because confusion can arise as to the lawyers role where each party is not separately represented,
it is important that the lawyer make clear the relationship; hence, the requirement of written consent.
Moreover, a lawyer should not permit his personal interests to influence his advice relative to a
suggestion by his client that additional counsel be employed. See also Rule 1.06 (b).
3. The Rule does not apply to a lawyer acting as arbitrator or mediator between or among parties who
are not clients of the lawyer, even where the lawyer has been appointed with the concurrence of the
parties. In performing such a role the lawyer may be subject to applicable codes of ethics, such as the
Code of Ethics for Arbitration in Commercial Disputes prepared by a joint Committee of the
American Bar Association and the American Arbitration Association.
4. In considering whether to act as intermediary between clients, a lawyer should be mindful that if
the intermediation fails the result can be additional cost, embarrassment and recrimination. In some
situations, the risk of failure is so great that intermediation is plainly impossible. Moreover, a lawyer
cannot undertake common representation of clients between whom contested litigation is reasonably
expected or who contemplate contentious negotiations. More generally, if the relationship between the
26

parties has already assumed definite antagonism, the possibility that the clients interests can be
adjusted by intermediation ordinarily is not very good.
5. The appropriateness of intermediation can depend on its form. Forms of intermediation range from
informal arbitration, where each clients case is presented by the respective client and the lawyer
decides the outcome, to mediation, to common representation where the clients interests are
substantially though not entirely compatible. One form may be appropriate in circumstances where
another would not. Other relevant factors are whether the lawyer subsequently will represent both
parties on a continuing basis and whether the situation involves creating a relationship between the
parties or terminating one.
Confidentiality and Privilege
6. A particularly important factor in determining the appropriateness of intermediation is the effect on
client-lawyer confidentiality and the attorney-client privilege. In a common representation, the lawyer
is still required both to keep each client adequately informed and to maintain confidentiality of
information relating to the representation, except as to such clients. See Rules 1.03 and 1.05.
Complying with both requirements while acting as intermediary requires a delicate balance. If the
balance cannot be maintained, the common representation is improper. With regard to the attorneyclient privilege, the general rule is that as between commonly represented clients the privilege does
not attach. Hence, it must be assumed that if litigation eventuates between the clients, the privilege
will not protect any such communications, and the clients should be so advised.
7. Since the lawyer is required to be impartial between commonly represented clients, intermediation
is improper when that impartiality cannot be maintained. For example, a lawyer who has represented
one of the clients for a long period and in a variety of matters might have difficulty being impartial
between that client and one to whom the lawyer has only recently been introduced.
Consultation
8. In acting as intermediary between clients, the lawyer should consult with the clients on the
implications of doing so, and proceed only upon informed consent based on such a consultation. The
consultation should make clear that the lawyers role is not that of partisanship normally expected in
other circumstances.
9. Paragraph (b) is an application of the principle expressed in Rule 1.03. Where the lawyer is
intermediary, the clients ordinarily must assume greater responsibility for decisions than when each
client is independently represented.
10. Under this Rule, any condition or circumstance that prevents a particular lawyer either from acting
as intermediary between clients, or from representing those clients individually in connection with a
matter after an unsuccessful intermediation, also prevents any other lawyer who is or becomes a
member of or associates with that lawyers firm from doing so. See paragraphs (c) and (e).
Withdrawal
27

11. In the event of withdrawal by one or more parties from the enterprise, the lawyer may
continue to act for the remaining parties and the enterprise. See also Rule 1.06 (c) (2)
which authorizes continuation of the representation with consent.
*****
Rule 1.09 Conflict of Interest: Former Client
(a) Without prior consent, a lawyer who personally has formerly represented a client in a matter shall
not thereafter represent another person in a matter adverse to the former client:
(1) in which such other person questions the validity of the lawyer's services or work product for the
former client;
(2) if the representation in reasonable probability will involve a violation of Rule 1.05; or
(3) if it is the same or a substantially related matter.
(b) Except to the extent authorized by Rule 1.10, when lawyers are or have become members of or
associated with a firm, none of them shall knowingly represent a client if any one of them practicing
alone would be prohibited from doing so by paragraph (a).
(c) When the association of a lawyer with a firm has terminated, the lawyers who were then
associated with that lawyer shall not knowingly represent a client if the lawyer whose association with
that firm has terminated would be prohibited from doing so by paragraph (a)(l) or if the representation
in reasonable probability will involve a violation of Rule 1.05.
Comment:
1. Rule 1.09 addresses the circumstances in which a lawyer in private practice, and other lawyers who
were, are or become members of or associated with a firm in which that lawyer practiced or practices,
may represent a client against a former client of that lawyer or the lawyers former firm. Whether a
lawyer, or that lawyers present or former firm, is prohibited from representing a client in a matter by
reason of the lawyers successive government and private employment is governed by Rule 1.10
rather than by this Rule.
2. Paragraph (a) concerns the situation where a lawyer once personally represented a client and now
wishes to represent a second client against that former client. Whether such a personal attorney-client
relationship existed involves questions of both fact and law that are beyond the scope of these Rules.
See Preamble: Scope. Among the relevant factors, however, would be how the former representation
actually was conducted within the firm; the nature and scope of the former clients contacts with the
firm (including any restrictions the client may have placed on the dissemination of confidential
information within the firm); and the size of the firm.
3. Although paragraph (a) does not absolutely prohibit a lawyer from representing a client against a
former client, it does provide that the latter representation is improper if any of three circumstances
exists, except with prior consent. The first circumstance is that the lawyer may not represent a client
who questions the validity of the lawyers services or work product for the former client. Thus, for
example, a lawyer who drew a will leaving a substantial portion of the testators property to a
designated beneficiary would violate paragraph (a) by representing the testators heirs at law in an
action seeking to overturn the will.
28

4. Paragraph (a)s second limitation on undertaking a representation against a former client is that it
may not be done if there is a reasonable probability that the representation would cause the lawyer to
violate the obligations owed the former client under Rule 1.05. Thus, for example, if there were a
reasonable probability that the subsequent representation would involve either an unauthorized
disclosure of confidential information under Rule 1.05 (b) (l) or an improper use of such information
to the disadvantage of the former client under Rule 1.05 (b) (3), that representation would be improper
under paragraph (a). Whether such a reasonable probability exists in any given case will be a question
of fact.
4A. The third situation where representation adverse to a former client is prohibited is where the
representation involves the same or a substantially related matter. The "same" matter aspect of this
prohibition prevents a lawyer from switching sides and representing a party whose interests are
adverse to a person who sought in good faith to retain the lawyer. It can apply even if the lawyer
declined the representation before the client had disclosed any confidential information. This aspect of
the prohibition includes, but is somewhat broader than, that
contained in paragraph (a) (1) of this Rule. The "substantially related" aspect, on the other hand, has a
different focus. Although that term is not defined in the Rule, it primarily involves situations where a
lawyer could have acquired confidential information concerning a prior client that could be used
either to that prior client's disadvantage or for the advantage of the lawyer's current client or some
other person. It thus largely overlaps the prohibition contained in paragraph (a)(2) of this Rule.
5. Paragraph (b) extends paragraph (a)s limitations on an individual lawyers freedom to undertake a
representation against that lawyers former client to all other lawyers who are or become members of
or associated with the firm in which that lawyer is practicing. Thus, for example, if a client severs the
attorney-client relationship with a lawyer who remains in a firm, the entitlement of that individual
lawyer to undertake a representation against that former client is governed by paragraph (a); and all
other lawyers who are or become members of or associated with that lawyers firm are treated in the
same manner by paragraph (b). Similarly, if a lawyer severs his or her association with a firm and that
firm retains as a client a person whom the lawyer personally represented while with the firm, that
lawyers ability thereafter to undertake a representation against that client is governed by paragraph
(a); and all other lawyers who are or become members of or associates with that lawyers new firm
are treated in the same manner by paragraph (b).
6. Paragraph (c) addresses the situation of former partners or associates of a lawyer who once had
represented a client when the relationship between the former partners or associates and the lawyer
has been terminated. In that situation, the former partners or associates are prohibited from
questioning the validity of such lawyers work product and from undertaking representation which in
reasonable probability will involve a violation of Rule 1.05. Such a violation could occur, for
example, when the former partners or associates retained materials in their files from the earlier
representation of the client that, if disclosed or used in connection with the subsequent representation,
would violate Rule l.05(b)(l) or (b)(3).
7. Thus, the effect of paragraph (b) is to (a) extend any inability of a particular lawyer under
paragraph (a) to undertake a representation against a former client to all other lawyers who are or
become members of or associated with any firm in which that lawyer is practicing. If, on the other
hand, a lawyer disqualified by paragraph (a) should leave a firm, paragraph (c) prohibits lawyers
29

remaining in that firm from undertaking a representation that would be forbidden to the departed
lawyer only if that representation would violate sub-paragraphs (a) (1) or (a) (2). Finally, should those
other lawyers cease to be members of the same firm as the lawyer affected by paragraph (a) without
personally coming within its restrictions, they thereafter may undertake the representation against the
lawyers former client unless prevented from doing so by some other of these Rules.
8. Although not required to do so by Rule 1.05 or this Rule, some courts, as a procedural decision,
disqualify a lawyer for representing a present client against a former client when the subject matter of
the present representation is so closely related to the subject matter of the prior representation that
confidences obtained from the former client might be useful in the representation of the present client.
See Comment 17 to Rule l.06. This so-called substantial
relationship test is defended by asserting that to require a showing that confidences of the first client
were in fact used for the benefit of the subsequent client as a condition to procedural disqualification
would cause disclosure of the confidences that the court seeks to protect. A lawyer is not subject to
discipline under Rule l.05(b)(l), (3), or (4), however, unless the protected information is actually used.
Likewise, a lawyer is not subject to discipline under this Rule unless the new representation by the
lawyer in reasonable probability would result in a violation of those provisions.
9. Whether the substantial relationship test will continue to be employed as a standard for procedural
disqualification is a matter beyond the scope of these Rules. See Preamble: Scope. The possibility that
such a disqualification might be sought by the former client or granted by a court, however, is a
matter that could be of substantial importance to the present client in deciding whether or not to retain
or continue to employ a particular lawyer or law firm as its counsel. Consequently, a lawyer should
disclose those possibilities, as well as their potential consequences for the representation, to the
present client as soon as the lawyer becomes aware of them; and the client then should be allowed to
decide whether or not to obtain new counsel. See Rules 1.03(b) and 1.06(b).
10. This Rule is primarily for the protection of clients and its protections can be waived
by them. A waiver is effective only if there is consent after disclosure of the relevant
circumstances, including the lawyers past or intended role on behalf of each client, as
appropriate. See Comments 7 and 8 to Rule 1.06.
*****
Rule 1.15 Declining or Terminating Representation
(a) A lawyer shall decline to represent a client or, where representation has commenced, shall
withdraw, except as stated in paragraph (c), from the representation of a client, if:
(1) the representation will result in violation of Rule 3.08, other applicable rules of professional
conduct or other law;
(2) the lawyers physical, mental or psychological condition materially impairs the lawyers fitness to
represent the client; or
(3) the lawyer is discharged, with or without good cause.
(b) Except as required by paragraph (a), a lawyer shall not withdraw from representing a client unless:
(1) withdrawal can be accomplished without material adverse effect on the interests of the client;
(2) the client persists in a course of action involving the lawyers services that the lawyer reasonably
30

believes may be criminal or fraudulent;

(3) the client has used the lawyers services to perpetrate a crime or fraud;
(4) a client insists upon pursuing an objective that the lawyer considers repugnant or imprudent or
with which the lawyer has fundamental disagreement;
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyers services,
including an obligation to pay the lawyers fee as agreed, and has been given reasonable warning that
the lawyer will withdraw unless the obligation is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer or has been
rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
(c) When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good
cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable
to protect a clients interests, such as giving reasonable notice to the client, allowing time for
employment of other counsel, surrendering papers and property to which the client is entitled and
refunding any advance payments of fee that has not been earned. The lawyer may retain papers
relating to the client to the extent permitted by other law only if such retention will not prejudice the
client in the subject matter of the representation.
Comment:
1. A lawyer should not accept representation in a matter unless it can be performed competently,
promptly, and without improper conflict of interest. See generally Rules 1.01, 1.06, 1.07, 1.08, and
1.09. Having accepted the representation, a lawyer normally should endeavor to handle the matter to
completion. Nevertheless, in certain situations the lawyer must terminate the representation and in
certain other situations the lawyer is permitted to withdraw.
Mandatory Withdrawal
2. A lawyer ordinarily must decline employment if the employment will cause the lawyer to engage in
conduct that the lawyer knows is illegal or that violates the Texas Disciplinary Rules of Professional
Conduct. Rule 1.15(a)(1); cf. Rules 1. 02(c), 3.01, 3.02, 3.03, 3.04, 3.08, 4.01, and 8.04. Similarly,
paragraph (a)(l) of this Rule requires a lawyer to withdraw from employment when the lawyer knows
that the employment will result in a violation of a rule of professional conduct or other law. The
lawyer is not obliged to decline or withdraw simply because the client suggests such a course of
conduct; a client may have made such a suggestion in the ill-founded hope that a lawyer will not be
constrained by a professional obligation. Cf. Rule 1.02(c) and (d).
3. When a lawyer has been appointed to represent a client and in certain other instances in litigation,
withdrawal ordinarily requires approval of the appointing authority or presiding judge. See also Rule
6.01. Difficulty may be encountered if withdrawal is based on the clients demand that the lawyer
engage in unprofessional conduct. The tribunal may wish an explanation for the withdrawal, while the
lawyer may be bound to keep confidential the facts that would constitute such an explanation. The
lawyers statement that professional considerations require termination of the representation
ordinarily should be accepted as sufficient. See also Rule 1.06(e).

31

Discharge
4. A client has the power to discharge a lawyer at any time, with or without cause, subject to liability
for payment for the lawyers services, and paragraph (a) of this Rule requires that the discharged
lawyer withdraw. Where future dispute about the withdrawal may be anticipated, it may be advisable
to prepare a written statement reciting the circumstances.
5. Whether a client can discharge an appointed counsel depends on the applicable law. A client
seeking to do so should be given full explanation of the consequences. In some instances the
consequences may include a decision by the appointing authority or presiding judge that appointment
of successor counsel is unjustified, thus requiring the client to represent himself.
Mentally Incompetent Client
6. If the client is mentally incompetent, the client may lack the legal capacity to discharge the lawyer
(see paragraphs 11 and 12 of Comment to Rule 1.02), and in any event the discharge may be seriously
adverse to the clients interests. The lawyer should make special effort to help
the incompetent client consider the consequences (see paragraph 5 of Comment to Rule 1.03) and in
some situations may initiate proceedings for a conservatorship or similar protection of the client. See
Rule 1.02(e).
Optional Withdrawal
7. Paragraph (b) supplements paragraph (a) by permitting a lawyer to withdraw from representation in
some certain additional circumstances. The lawyer has the option to withdraw if it can be
accomplished without material adverse effect on the clients interests. Withdrawal is also justified if
the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent,
for a lawyer is not required to be associated with such conduct even if the lawyer does not further it. A
lawyer is not required to discontinue the representation until the lawyer knows the conduct will be
illegal or in violation of these rules, at which point the lawyers withdrawal is mandated by paragraph
(a)(l). Withdrawal is also permitted if the lawyers services were misused in the past. The lawyer also
may withdraw where the client insists on pursuing a repugnant or imprudent objective or one with
which the lawyer has fundamental disagreement. A lawyer may withdraw if the client refuses, after
being duly warned, to abide by the terms of an agreement relating to the representation, such as an
agreement concerning fees or court costs or an agreement limiting the objectives of the representation.
7. Withdrawal permitted by paragraph (b)(2) through (7) is optional with the lawyer even though the
withdrawal may have a material adverse effect upon the interests of the client.
Assisting the Client Upon Withdrawal
8. In every instance of withdrawal and even if the lawyer has been unfairly discharged by the client, a
lawyer must take all reasonable steps to mitigate the consequences to the client. See paragraph (d).
The lawyer may retain papers as security for a fee only to the extent permitted by law.
9. Other rules, in addition to Rule 1.15, require or suggest withdrawal in certain situations. See Rules
1.01, 1.05 Comment 22, 1.06(e) and 1.07(c), 1.11(c), 1.12(d), and 3.08(a).
*****
Rule 3.03 Candor Toward the Tribunal
32

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal;
(2) fail to disclose a fact to a tribunal when disclosure is necessary to avoid assisting a criminal or
fraudulent act;
(3) in an ex parte proceeding, fail to disclose to the tribunal an unprivileged fact which the lawyer
reasonably believes should be known by that entity for it to make an informed decision;
(4) fail to disclose to the tribunal authority in the controlling jurisdiction known to the lawyer to be
directly adverse to the position of the client and not disclosed by opposing counsel; or
(5) offer or use evidence that the lawyer knows to be false.
(b) If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall make a
good faith effort to persuade the client to authorize the lawyer to correct or withdraw the false
evidence. If such efforts are unsuccessful, the lawyer shall take reasonable remedial measures,
including disclosure of the true facts.
(c) The duties stated in paragraphs (a) and (b) continue until remedial legal measures are no longer
reasonably possible.
Comment:
1. The advocates task is to present the clients case with persuasive force. Performance of that duty
while maintaining confidences of the client is qualified by the advocates duty of candor to the
tribunal.
Factual Representations by Lawyer
2. An advocate is responsible for pleadings and other documents prepared for litigation, but is usually
not required to have personal knowledge of matters asserted therein, for litigation documents
ordinarily present assertions by the client, or by someone on the clients behalf, and not assertions by
the lawyer. Compare Rule 3.01. However, an assertion purporting to be on the lawyers own
knowledge, as in an affidavit by the lawyer or a representation of fact in open court, may properly be
made only when the lawyer knows the assertion is true or believes it to be true on the basis of a
reasonably diligent inquiry. There are circumstances where failure to make a disclosure is the
equivalent of an affirmative misrepresentation. The obligation prescribed in Rule 1.02(c) not to
counsel a client to commit or assist the client in committing a fraud applies in litigation. See the
Comments to Rules 1.02(c) and 8.04(a).
Misleading Legal Argument
3. Legal argument based on a knowingly false representation of law constitutes dishonesty toward the
tribunal. A lawyer is not required to make a disinterested exposition of the law, but should recognize
the existence of pertinent legal authorities. Furthermore, as stated in paragraph (a)(4), an advocate has
a duty to disclose directly adverse authority in the controlling
jurisdiction which has not been disclosed by the opposing party. The underlying concept is that legal
argument is a discussion seeking to determine the legal premises properly applicable to the case.
Ex Parte Proceedings
4. Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a
33

tribunal should consider in reaching a decision; the conflicting position is expected to be presented by
the opposing party. However, in an ex parte proceeding, such as an application for a temporary
restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte
proceeding is nevertheless to yield a substantially just result. The judge has an affirmative
responsibility to accord the absent party just consideration. The lawyer for the represented party has
the correlative duty to make disclosures of unprivileged material facts known to the lawyer if the
lawyer reasonably believes the tribunal will not reach a just decision unless informed of those facts.
Anticipated False Evidence
5. On occasion a lawyer may be asked to place into evidence testimony or other material that the
lawyer knows to be false. Initially in such situations, a lawyer should urge the client or other person
involved to not offer false or fabricated evidence. However, whether such evidence is provided by the
client or by another person, the lawyer must refuse to offer it, regardless of the clients wishes. As to a
lawyers right to refuse to offer testimony or other evidence that the lawyer believes is false, see
paragraph 15 of this Comment.
6. If the request to place false testimony or other material into evidence came from the lawyers client,
the lawyer also would be justified in seeking to withdraw from the case. See Rules l.l5(a)(l) and
(b)(2), (4). If withdrawal is allowed by the tribunal, the lawyer may be authorized under Rule
l.05(c)(7) to reveal the reasons for that withdrawal to any other lawyer subsequently retained by the
client in the matter; but normally that Rule would not allow the lawyer to reveal that information to
another person or to the tribunal. If the lawyer either chooses not to withdraw or is not allowed to do
so by the tribunal, the lawyer should again urge the client not to offer false testimony or other
evidence and advise the client of the steps the lawyer will take if such false evidence is offered. Even
though the lawyer does not receive satisfactory assurances that the client or other witness will testify
truthfully as to a particular matter, the lawyer may use that person as a witness as to other matters that
the lawyer believes will not result in perjured testimony.
Past False Evidence
7. It is possible, however, that a lawyer will place testimony or other material into evidence and only
later learn of its falsity. When such testimony or other evidence is offered by the client, problems arise
between the lawyers duty to keep the clients revelations confidential and the lawyers duty of candor
to the tribunal. Under this Rule, upon ascertaining that material testimony or other evidence is false,
the lawyer must first seek to persuade the client to correct
the false testimony or to withdraw the false evidence. If the persuasion is ineffective, the lawyer must
take additional remedial measures.
8. When a lawyer learns that the lawyers services have been improperly utilized in a civil case to
place false testimony or other material into evidence, the rule generally recognized is that the lawyer
must disclose the existence of the deception to the court or to the other party, if necessary rectify the
deception. See paragraph (b) and Rule 1.05(h). See also Rule l.05(g). Such a disclosure can result in
grave consequences to the client, including not only a sense of betrayal by the lawyer but also loss of
the case and perhaps a prosecution for perjury. But the alternative is that the lawyer would be aiding
in the deception of the tribunal or jury, thereby subverting the truth-finding process which the
34

adversary system is designed to implement. See Rule 1.02(c). Furthermore, unless it is clearly
understood that the lawyer will act upon the duty to disclose the existence of false evidence, the client
can simply reject the lawyers advice to reveal the false evidence and insist that the lawyer keep
silent. Thus the client could in effect coerce the lawyer into being a party to fraud on the court.
Perjury by a Criminal Defendant
9. Whether an advocate for a criminally accused has the same duty of disclosure has been intensely
debated. While it is agreed that in such cases, as in others, the lawyer should seek to persuade the
client to refrain from suborning or offering perjurious testimony or other false evidence, there has
been dispute concerning the lawyers duty when that persuasion fails. If the confrontation with the
client occurs before trial, the lawyer ordinarily can withdraw. Withdrawal before trial may not be
possible, however, either because trial is imminent, or because the confrontation with the client does
not take place until the trial itself, or because no other counsel is available.
10. The proper resolution of the lawyers dilemma in criminal cases is complicated by two
considerations. The first is the substantial penalties that a criminal accused will face upon conviction,
and the lawyers resulting reluctance to impair any defenses the accused wishes to offer on his own
behalf having any possible basis in fact. The second is the right of a defendant to take the stand should
he so desire, even over the objections of the lawyer. Consequently, in any criminal case where the
accused either insists on testifying when the lawyer knows that the testimony is perjurious or else
surprises the lawyer with such testimony at trial, the lawyers effort to rectify the situation can
increase the likelihood of the clients being convicted as well as opening the possibility of a
prosecution for perjury. On the other hand, if the lawyer does not exercise control over the proof, the
lawyer participates, although in a merely passive way, in deception of the court.
11. Three resolutions of this dilemma have been proposed. One is to permit the accused to testify by a
narrative without guidance through the lawyer's questioning. This compromises both contending
principles; it exempts the lawyer from the duty to disclose false evidence but subjects the client to an
implicit disclosure of information imparted to counsel. Another suggested resolution is that the
advocate be entirely excused from the duty to reveal perjury if
the perjury is that of the client. This solution, however, makes the advocate a knowing instrument of
perjury.
12. The other resolution of the dilemma, and the one this Rule adopts, is that the lawyer must take a
reasonable remedial measure which may include revealing the clients perjury. A criminal accused
has a right to the assistance of an advocate, a right to testify and a right of confidential communication
with counsel. However, an accused should not have a right to assistance of counsel in committing
perjury. Furthermore, an advocate has an obligation, not only in professional ethics but under the law
as well, to avoid implication in the commission of perjury or other falsification of evidence.
False Evidence Not Introduced by the Lawyer
13. A lawyer may have introduced the testimony of a client or other witness who testified truthfully
under direct examination, but who offered false testimony or other evidence during examination by
another party. Although the lawyer should urge that the false evidence be corrected or withdrawn, the
full range of obligation imposed by paragraphs (a)(5) and (b) of this Rule do not apply to such
situations. A subsequent use of that false testimony or other evidence by the lawyer in support of the
35

clients case, however, would violate paragraph (a)(5).

Duration of Obligation
14. The time limit on the obligation to rectify the presentation of false testimony or other evidence
varies from case to case but continues as long as there is a reasonable possibility of taking corrective
legal actions before a tribunal.
Refusing to Offer Proof Believed to be False
15. A lawyer may refuse to offer evidence that the lawyer reasonably believes is
untrustworthy, even if the lawyer does not know that the evidence is false. That discretion
should be exercised cautiously, however, in order not to impair the legitimate interests of
the client. Where a client wishes to have such suspect evidence introduced, generally the
lawyer should do so and allow the finder of fact to assess its probative value. A lawyers
obligations under paragraphs (a)(2), (a)(5) and (b) of this Rule are not triggered by the
introduction of testimony or other evidence that is believed by the lawyer to be false, but
not known to be so.
*****

36

AMERICAN BAR ASSOCIATION

Model Rules of Professional Conduct
CLIENT-LAWYER RELATIONSHIP
RULE 1.7 CONFLICT OF INTEREST: CURRENT CLIENTS

(a) Except as provided in paragraph (b), a lawyer shall not represent

a client if the representation involves a concurrent conflict of interest.
A concurrent conflict of interest exists if:
(1) the representation of one client will be
directly adverse to another client; or
(2) there is a significant risk that the
representation of one or more clients will
be materially limited by the lawyer's
responsibilities to another client, a former
client or a third person or by a personal
interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest
under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the
lawyer will be able to provide competent
and diligent representation to each
affected client;
(2) the representation is not prohibited by
law;
(3) the representation does not involve the
assertion of a claim by one client against
another client represented by the lawyer
in the same litigation or other proceeding
before a tribunal; and
(4) each affected client gives informed
consent, confirmed in writing.
Comment

37

General Principles
[1] Loyalty and independent judgment are essential elements in the
lawyer's relationship to a client. Concurrent conflicts of interest can arise
from the lawyer's responsibilities to another client, a former client or a
third person or from the lawyer's own interests. For specific Rules
regarding certain concurrent conflicts of interest, see Rule 1.8. For former
client conflicts of interest, see Rule 1.9. For conflicts of interest involving
prospective clients, see Rule 1.18. For definitions of "informed consent"
and "confirmed in writing," see Rule 1.0(e) and (b).
[2] Resolution of a conflict of interest problem under this Rule requires the
lawyer to: 1) clearly identify the client or clients; 2) determine whether a
conflict of interest exists; 3) decide whether the representation may be
undertaken despite the existence of a conflict, i.e., whether the conflict is
consentable; and 4) if so, consult with the clients affected under paragraph
(a) and obtain their informed consent, confirmed in writing. The clients
affected under paragraph (a) include both of the clients referred to in
paragraph (a)(1) and the one or more clients whose representation might
be materially limited under paragraph (a)(2).
[3] A conflict of interest may exist before representation is undertaken, in
which event the representation must be declined, unless the lawyer obtains
the informed consent of each client under the conditions of paragraph (b).
To determine whether a conflict of interest exists, a lawyer should adopt
reasonable procedures, appropriate for the size and type of firm and
practice, to determine in both litigation and non-litigation matters the
persons and issues involved. See also Comment to Rule 5.1. Ignorance
caused by a failure to institute such procedures will not excuse a lawyer's
violation of this Rule. As to whether a client-lawyer relationship exists or,
having once been established, is continuing, see Comment to Rule 1.3 and
Scope.
[4] If a conflict arises after representation has been undertaken, the lawyer
ordinarily must withdraw from the representation, unless the lawyer has
obtained the informed consent of the client under the conditions of
paragraph (b). See Rule 1.16. Where more than one client is involved,
whether the lawyer may continue to represent any of the clients is
determined both by the lawyer's ability to comply with duties owed to the
former client and by the lawyer's ability to represent adequately the
remaining client or clients, given the lawyer's duties to the former client.
See Rule 1.9. See also Comments [5] and [29].
[5] Unforeseeable developments, such as changes in corporate and other
organizational affiliations or the addition or realignment of parties in
litigation, might create conflicts in the midst of a representation, as when a
38

company sued by the lawyer on behalf of one client is bought by another

client represented by the lawyer in an unrelated matter. Depending on the
circumstances, the lawyer may have the option to withdraw from one of
the representations in order to avoid the conflict. The lawyer must seek
court approval where necessary and take steps to minimize harm to the
clients. See Rule 1.16. The lawyer must continue to protect the
confidences of the client from whose representation the lawyer has
withdrawn. See Rule 1.9(c).
Identifying Conflicts of Interest: Directly Adverse
[6] Loyalty to a current client prohibits undertaking representation directly
adverse to that client without that client's informed consent. Thus, absent
consent, a lawyer may not act as an advocate in one matter against a
person the lawyer represents in some other matter, even when the matters
are wholly unrelated. The client as to whom the representation is directly
adverse is likely to feel betrayed, and the resulting damage to the clientlawyer relationship is likely to impair the lawyer's ability to represent the
client effectively. In addition, the client on whose behalf the adverse
representation is undertaken reasonably may fear that the lawyer will
pursue that client's case less effectively out of deference to the other client,
i.e., that the representation may be materially limited by the lawyer's
interest in retaining the current client. Similarly, a directly adverse conflict
may arise when a lawyer is required to cross-examine a client who appears
as a witness in a lawsuit involving another client, as when the testimony
will be damaging to the client who is represented in the lawsuit. On the
other hand, simultaneous representation in unrelated matters of clients
whose interests are only economically adverse, such as representation of
competing economic enterprises in unrelated litigation, does not ordinarily
constitute a conflict of interest and thus may not require consent of the
respective clients.
[7] Directly adverse conflicts can also arise in transactional matters. For
example, if a lawyer is asked to represent the seller of a business in
negotiations with a buyer represented by the lawyer, not in the same
transaction but in another, unrelated matter, the lawyer could not
undertake the representation without the informed consent of each client.
Identifying Conflicts of Interest: Material Limitation
[8] Even where there is no direct adverseness, a conflict of interest exists
if there is a significant risk that a lawyer's ability to consider, recommend
or carry out an appropriate course of action for the client will be materially
limited as a result of the lawyer's other responsibilities or interests. For
example, a lawyer asked to represent several individuals seeking to form a
joint venture is likely to be materially limited in the lawyer's ability to
39

recommend or advocate all possible positions that each might take because
of the lawyer's duty of loyalty to the others. The conflict in effect
forecloses alternatives that would otherwise be available to the client. The
mere possibility of subsequent harm does not itself require disclosure and
consent. The critical questions are the likelihood that a difference in
interests will eventuate and, if it does, whether it will materially interfere
with the lawyer's independent professional judgment in considering
alternatives or foreclose courses of action that reasonably should be
pursued on behalf of the client.
Lawyer's Responsibilities to Former Clients and Other Third Persons
[9] In addition to conflicts with other current clients, a lawyer's duties of
loyalty and independence may be materially limited by responsibilities to
former clients under Rule 1.9 or by the lawyer's responsibilities to other
persons, such as fiduciary duties arising from a lawyer's service as a
trustee, executor or corporate director.
Personal Interest Conflicts
[10] The lawyer's own interests should not be permitted to have an adverse
effect on representation of a client. For example, if the probity of a
lawyer's own conduct in a transaction is in serious question, it may be
difficult or impossible for the lawyer to give a client detached advice.
Similarly, when a lawyer has discussions concerning possible employment
with an opponent of the lawyer's client, or with a law firm representing the
opponent, such discussions could materially limit the lawyer's
representation of the client. In addition, a lawyer may not allow related
business interests to affect representation, for example, by referring clients
to an enterprise in which the lawyer has an undisclosed financial interest.
See Rule 1.8 for specific Rules pertaining to a number of personal interest
conflicts, including business transactions with clients. See also Rule 1.10
(personal interest conflicts under Rule 1.7 ordinarily are not imputed to
other lawyers in a law firm).
[11] When lawyers representing different clients in the same matter or in
substantially related matters are closely related by blood or marriage, there
may be a significant risk that client confidences will be revealed and that
the lawyer's family relationship will interfere with both loyalty and
independent professional judgment. As a result, each client is entitled to
know of the existence and implications of the relationship between the
lawyers before the lawyer agrees to undertake the representation. Thus, a
lawyer related to another lawyer, e.g., as parent, child, sibling or spouse,
ordinarily may not represent a client in a matter where that lawyer is
representing another party, unless each client gives informed consent. The
disqualification arising from a close family relationship is personal and
40

ordinarily is not imputed to members of firms with whom the lawyers are
associated. See Rule 1.10.
[12] A lawyer is prohibited from engaging in sexual relationships with a
client unless the sexual relationship predates the formation of the clientlawyer relationship. See Rule 1.8(j).
Interest of Person Paying for a Lawyer's Service
[13] A lawyer may be paid from a source other than the client, including a
co-client, if the client is informed of that fact and consents and the
arrangement does not compromise the lawyer's duty of loyalty or
independent judgment to the client. See Rule 1.8(f). If acceptance of the
payment from any other source presents a significant risk that the lawyer's
representation of the client will be materially limited by the lawyer's own
interest in accommodating the person paying the lawyer's fee or by the
lawyer's responsibilities to a payer who is also a co-client, then the lawyer
must comply with the requirements of paragraph (b) before accepting the
representation, including determining whether the conflict is consentable
and, if so, that the client has adequate information about the material risks
of the representation.
Prohibited Representations
[14] Ordinarily, clients may consent to representation notwithstanding a
conflict. However, as indicated in paragraph (b), some conflicts are
nonconsentable, meaning that the lawyer involved cannot properly ask for
such agreement or provide representation on the basis of the client's
consent. When the lawyer is representing more than one client, the
question of consentability must be resolved as to each client.
[15] Consentability is typically determined by considering whether the
interests of the clients will be adequately protected if the clients are
permitted to give their informed consent to representation burdened by a
conflict of interest. Thus, under paragraph (b)(1), representation is
prohibited if in the circumstances the lawyer cannot reasonably conclude
that the lawyer will be able to provide competent and diligent
representation. See Rule 1.1 (competence) and Rule 1.3 (diligence).
[16] Paragraph (b)(2) describes conflicts that are nonconsentable because
the representation is prohibited by applicable law. For example, in some
states substantive law provides that the same lawyer may not represent
more than one defendant in a capital case, even with the consent of the
clients, and under federal criminal statutes certain representations by a
former government lawyer are prohibited, despite the informed consent of
the former client. In addition, decisional law in some states limits the
41

ability of a governmental client, such as a municipality, to consent to a

conflict of interest.
[17] Paragraph (b)(3) describes conflicts that are nonconsentable because
of the institutional interest in vigorous development of each client's
position when the clients are aligned directly against each other in the
same litigation or other proceeding before a tribunal. Whether clients are
aligned directly against each other within the meaning of this paragraph
requires examination of the context of the proceeding. Although this
paragraph does not preclude a lawyer's multiple representation of adverse
parties to a mediation (because mediation is not a proceeding before a
"tribunal" under Rule 1.0(m)), such representation may be precluded by
paragraph (b)(1).
Informed Consent
[18] Informed consent requires that each affected client be aware of the
relevant circumstances and of the material and reasonably foreseeable
ways that the conflict could have adverse effects on the interests of that
client. See Rule 1.0(e) (informed consent). The information required
depends on the nature of the conflict and the nature of the risks involved.
When representation of multiple clients in a single matter is undertaken,
the information must include the implications of the common
representation, including possible effects on loyalty, confidentiality and
the attorney-client privilege and the advantages and risks involved. See
Comments [30] and [31] (effect of common representation on
confidentiality).
[19] Under some circumstances it may be impossible to make the
disclosure necessary to obtain consent. For example, when the lawyer
represents different clients in related matters and one of the clients refuses
to consent to the disclosure necessary to permit the other client to make an
informed decision, the lawyer cannot properly ask the latter to consent. In
some cases the alternative to common representation can be that each
party may have to obtain separate representation with the possibility of
incurring additional costs. These costs, along with the benefits of securing
separate representation, are factors that may be considered by the affected
client in determining whether common representation is in the client's
interests.
Consent Confirmed in Writing
[20] Paragraph (b) requires the lawyer to obtain the informed consent of
the client, confirmed in writing. Such a writing may consist of a document
executed by the client or one that the lawyer promptly records and
transmits to the client following an oral consent. See Rule 1.0(b). See also
42

Rule 1.0(n) (writing includes electronic transmission). If it is not feasible

to obtain or transmit the writing at the time the client gives informed
consent, then the lawyer must obtain or transmit it within a reasonable
time thereafter. See Rule 1.0(b). The requirement of a writing does not
supplant the need in most cases for the lawyer to talk with the client, to
explain the risks and advantages, if any, of representation burdened with a
conflict of interest, as well as reasonably available alternatives, and to
afford the client a reasonable opportunity to consider the risks and
alternatives and to raise questions and concerns. Rather, the writing is
required in order to impress upon clients the seriousness of the decision
the client is being asked to make and to avoid disputes or ambiguities that
might later occur in the absence of a writing.
Revoking Consent
[21] A client who has given consent to a conflict may revoke the consent
and, like any other client, may terminate the lawyer's representation at any
time. Whether revoking consent to the client's own representation
precludes the lawyer from continuing to represent other clients depends on
the circumstances, including the nature of the conflict, whether the client
revoked consent because of a material change in circumstances, the
reasonable expectations of the other client and whether material detriment
to the other clients or the lawyer would result.
Consent to Future Conflict
[22] Whether a lawyer may properly request a client to waive conflicts
that might arise in the future is subject to the test of paragraph (b). The
effectiveness of such waivers is generally determined by the extent to
which the client reasonably understands the material risks that the waiver
entails. The more comprehensive the explanation of the types of future
representations that might arise and the actual and reasonably foreseeable
adverse consequences of those representations, the greater the likelihood
that the client will have the requisite understanding. Thus, if the client
agrees to consent to a particular type of conflict with which the client is
already familiar, then the consent ordinarily will be effective with regard
to that type of conflict. If the consent is general and open-ended, then the
consent ordinarily will be ineffective, because it is not reasonably likely
that the client will have understood the material risks involved. On the
other hand, if the client is an experienced user of the legal services
involved and is reasonably informed regarding the risk that a conflict may
arise, such consent is more likely to be effective, particularly if, e.g., the
client is independently represented by other counsel in giving consent and
the consent is limited to future conflicts unrelated to the subject of the
representation. In any case, advance consent cannot be effective if the

43

circumstances that materialize in the future are such as would make the
conflict nonconsentable under paragraph (b).
Conflicts in Litigation
[23] Paragraph (b)(3) prohibits representation of opposing parties in the
same litigation, regardless of the clients' consent. On the other hand,
simultaneous representation of parties whose interests in litigation may
conflict, such as coplaintiffs or codefendants, is governed by paragraph
(a)(2). A conflict may exist by reason of substantial discrepancy in the
parties' testimony, incompatibility in positions in relation to an opposing
party or the fact that there are substantially different possibilities of
settlement of the claims or liabilities in question. Such conflicts can arise
in criminal cases as well as civil. The potential for conflict of interest in
representing multiple defendants in a criminal case is so grave that
ordinarily a lawyer should decline to represent more than one codefendant.
On the other hand, common representation of persons having similar
interests in civil litigation is proper if the requirements of paragraph (b)
are met.
[24] Ordinarily a lawyer may take inconsistent legal positions in different
tribunals at different times on behalf of different clients. The mere fact
that advocating a legal position on behalf of one client might create
precedent adverse to the interests of a client represented by the lawyer in
an unrelated matter does not create a conflict of interest. A conflict of
interest exists, however, if there is a significant risk that a lawyer's action
on behalf of one client will materially limit the lawyer's effectiveness in
representing another client in a different case; for example, when a
decision favoring one client will create a precedent likely to seriously
weaken the position taken on behalf of the other client. Factors relevant in
determining whether the clients need to be advised of the risk include:
where the cases are pending, whether the issue is substantive or
procedural, the temporal relationship between the matters, the significance
of the issue to the immediate and long-term interests of the clients
involved and the clients' reasonable expectations in retaining the lawyer. If
there is significant risk of material limitation, then absent informed
consent of the affected clients, the lawyer must refuse one of the
representations or withdraw from one or both matters.
[25] When a lawyer represents or seeks to represent a class of plaintiffs or
defendants in a class-action lawsuit, unnamed members of the class are
ordinarily not considered to be clients of the lawyer for purposes of
applying paragraph (a)(1) of this Rule. Thus, the lawyer does not typically
need to get the consent of such a person before representing a client suing
the person in an unrelated matter. Similarly, a lawyer seeking to represent
an opponent in a class action does not typically need the consent of an
44

unnamed member of the class whom the lawyer represents in an unrelated

matter.
Nonlitigation Conflicts
[26] Conflicts of interest under paragraphs (a)(1) and (a)(2) arise in
contexts other than litigation. For a discussion of directly adverse conflicts
in transactional matters, see Comment [7]. Relevant factors in determining
whether there is significant potential for material limitation include the
duration and intimacy of the lawyer's relationship with the client or clients
involved, the functions being performed by the lawyer, the likelihood that
disagreements will arise and the likely prejudice to the client from the
conflict. The question is often one of proximity and degree. See Comment
[8].
[27] For example, conflict questions may arise in estate planning and
estate administration. A lawyer may be called upon to prepare wills for
several family members, such as husband and wife, and, depending upon
the circumstances, a conflict of interest may be present. In estate
administration the identity of the client may be unclear under the law of a
particular jurisdiction. Under one view, the client is the fiduciary; under
another view the client is the estate or trust, including its beneficiaries. In
order to comply with conflict of interest rules, the lawyer should make
clear the lawyer's relationship to the parties involved.
[28] Whether a conflict is consentable depends on the circumstances. For
example, a lawyer may not represent multiple parties to a negotiation
whose interests are fundamentally antagonistic to each other, but common
representation is permissible where the clients are generally aligned in
interest even though there is some difference in interest among them.
Thus, a lawyer may seek to establish or adjust a relationship between
clients on an amicable and mutually advantageous basis; for example, in
helping to organize a business in which two or more clients are
entrepreneurs, working out the financial reorganization of an enterprise in
which two or more clients have an interest or arranging a property
distribution in settlement of an estate. The lawyer seeks to resolve
potentially adverse interests by developing the parties' mutual interests.
Otherwise, each party might have to obtain separate representation, with
the possibility of incurring additional cost, complication or even litigation.
Given these and other relevant factors, the clients may prefer that the
lawyer act for all of them.
Special Considerations in Common Representation
[29] In considering whether to represent multiple clients in the same
matter, a lawyer should be mindful that if the common representation fails
45

because the potentially adverse interests cannot be reconciled, the result

can be additional cost, embarrassment and recrimination. Ordinarily, the
lawyer will be forced to withdraw from representing all of the clients if the
common representation fails. In some situations, the risk of failure is so
great that multiple representation is plainly impossible. For example, a
lawyer cannot undertake common representation of clients where
contentious litigation or negotiations between them are imminent or
contemplated. Moreover, because the lawyer is required to be impartial
between commonly represented clients, representation of multiple clients
is improper when it is unlikely that impartiality can be maintained.
Generally, if the relationship between the parties has already assumed
antagonism, the possibility that the clients' interests can be adequately
served by common representation is not very good. Other relevant factors
are whether the lawyer subsequently will represent both parties on a
continuing basis and whether the situation involves creating or terminating
a relationship between the parties.
[30] A particularly important factor in determining the appropriateness of
common representation is the effect on client-lawyer confidentiality and
the attorney-client privilege. With regard to the attorney-client privilege,
the prevailing rule is that, as between commonly represented clients, the
privilege does not attach. Hence, it must be assumed that if litigation
eventuates between the clients, the privilege will not protect any such
communications, and the clients should be so advised.
[31] As to the duty of confidentiality, continued common representation
will almost certainly be inadequate if one client asks the lawyer not to
disclose to the other client information relevant to the common
representation. This is so because the lawyer has an equal duty of loyalty
to each client, and each client has the right to be informed of anything
bearing on the representation that might affect that client's interests and
the right to expect that the lawyer will use that information to that client's
benefit. See Rule 1.4. The lawyer should, at the outset of the common
representation and as part of the process of obtaining each client's
informed consent, advise each client that information will be shared and
that the lawyer will have to withdraw if one client decides that some
matter material to the representation should be kept from the other. In
limited circumstances, it may be appropriate for the lawyer to proceed
with the representation when the clients have agreed, after being properly
informed, that the lawyer will keep certain information confidential. For
example, the lawyer may reasonably conclude that failure to disclose one
client's trade secrets to another client will not adversely affect
representation involving a joint venture between the clients and agree to
keep that information confidential with the informed consent of both
clients.

46

[32] When seeking to establish or adjust a relationship between clients, the

lawyer should make clear that the lawyer's role is not that of partisanship
normally expected in other circumstances and, thus, that the clients may
be required to assume greater responsibility for decisions than when each
client is separately represented. Any limitations on the scope of the
representation made necessary as a result of the common representation
should be fully explained to the clients at the outset of the representation.
See Rule 1.2(c).
[33] Subject to the above limitations, each client in the common
representation has the right to loyal and diligent representation and the
protection of Rule 1.9 concerning the obligations to a former client. The
client also has the right to discharge the lawyer as stated in Rule 1.16.
Organizational Clients
[34] A lawyer who represents a corporation or other organization does not,
by virtue of that representation, necessarily represent any constituent or
affiliated organization, such as a parent or subsidiary. See Rule 1.13(a).
Thus, the lawyer for an organization is not barred from accepting
representation adverse to an affiliate in an unrelated matter, unless the
circumstances are such that the affiliate should also be considered a client
of the lawyer, there is an understanding between the lawyer and the
organizational client that the lawyer will avoid representation adverse to
the client's affiliates, or the lawyer's obligations to either the
organizational client or the new client are likely to limit materially the
lawyer's representation of the other client.
[35] A lawyer for a corporation or other organization who is also a
member of its board of directors should determine whether the
responsibilities of the two roles may conflict. The lawyer may be called on
to advise the corporation in matters involving actions of the directors.
Consideration should be given to the frequency with which such situations
may arise, the potential intensity of the conflict, the effect of the lawyer's
resignation from the board and the possibility of the corporation's
obtaining legal advice from another lawyer in such situations. If there is
material risk that the dual role will compromise the lawyer's independence
of professional judgment, the lawyer should not serve as a director or
should cease to act as the corporation's lawyer when conflicts of interest
arise. The lawyer should advise the other members of the board that in
some circumstances matters discussed at board meetings while the lawyer
is present in the capacity of director might not be protected by the
attorney-client privilege and that conflict of interest considerations might
require the lawyer's recusal as a director or might require the lawyer and
the lawyer's firm to decline representation of the corporation in a matter.

47

8 C.F.R.
1001.1 Definitions.
As used in this chapter:
*****
(i) The term practice means the act or acts of any person appearing in any case, either
in person or through the preparation or filing of any brief or other document,
paper, application, or petition on behalf of another person or client before or
with DHS, or any immigration judge, or the Board.
******

1003.102 Grounds.
It is deemed to be in the public interest for an adjudicating official or the Board to impose
disciplinary sanctions against any practitioner who falls within one or more of the
categories enumerated in this section, but these categories do not constitute the exclusive
grounds for which disciplinary sanctions may be imposed in the public interest. Nothing
in this regulation should be read to denigrate the practitioner's duty to represent zealously
his or her client within the bounds of the law. A practitioner who falls within one of the
following categories shall be subject to disciplinary sanctions in the public interest if he
or she:
*****
(c) Knowingly or with reckless disregard makes a false statement of material fact or law,
or willfully misleads, misinforms, threatens, or deceives any person (including a party to
a case or an officer or employee of the Department of Justice), concerning any material
and relevant matter relating to a case, including knowingly or with reckless disregard
offering false evidence. If a practitioner has offered material evidence and comes to know
of its falsity, the practitioner shall take appropriate remedial measures;
*****
(j) Engages in frivolous behavior in a proceeding before an Immigration Court, the
Board, or any other administrative appellate body under title II of the Immigration and
Nationality Act, provided:
(1) A practitioner engages in frivolous behavior when he or she knows or reasonably
should have known that his or her actions lack an arguable basis in law or in fact, or are
taken for an improper purpose, such as to harass or to cause unnecessary delay. Actions
that, if taken improperly, may be subject to disciplinary sanctions include, but are not
limited to, the making of an argument on any factual or legal question, the submission of
an application for discretionary relief, the filing of a motion, or the filing of an appeal.
The signature of a practitioner on any filing, application, motion, appeal, brief, or other
document constitutes certification by the signer that the signer has read the filing,
application, motion, appeal, brief, or other document and that, to the best of the signer's
knowledge, information, and belief, formed after inquiry reasonable under the
circumstances, the document is well-grounded in fact and is warranted by existing law or
by a good faith argument for the extension, modification, or reversal of existing law or
the establishment of new law, and is not interposed for any improper purpose.
48

(2) The imposition of disciplinary sanctions for frivolous behavior under this section in
no way limits the authority of the Board to dismiss an appeal summarily pursuant to
1003.1(d);
******

49

INA 274C Penalties for Document Fraud

(a) Activities prohibited
It is unlawful for any person or entity knowingly
(1) to forge, counterfeit, alter, or falsely make any document for the purpose of satisfying
a requirement of this chapter or to obtain a benefit under this chapter,
(2) to use, attempt to use, possess, obtain, accept, or receive or to provide any forged,
counterfeit, altered, or falsely made document in order to satisfy any requirement of this
chapter or to obtain a benefit under this chapter,
(3) to use or attempt to use or to provide or attempt to provide any document lawfully
issued to or with respect to a person other than the possessor (including a deceased
individual) for the purpose of satisfying a requirement of this chapter or obtaining a
benefit under this chapter,
(4) to accept or receive or to provide any document lawfully issued to or with respect to a
person other than the possessor (including a deceased individual) for the purpose of
complying with section 1324a (b) of this title or obtaining a benefit under this chapter, or
(5) to prepare, file, or assist another in preparing or filing, any application for benefits
under this chapter, or any document required under this chapter, or any document
submitted in connection with such application or document, with knowledge or in
reckless disregard of the fact that such application or document was falsely made or, in
whole or in part, does not relate to the person on whose behalf it was or is being
submitted, or
(6)
(A) to present before boarding a common carrier for the purpose of coming to the United
States a document which relates to the aliens eligibility to enter the United States, and
(B) to fail to present such document to an immigration officer upon arrival at a United
States port of entry.
******

50

The Professional Ethics Committee

for the State Bar of Texas
Opinion 635
August 2013
QUESTION PRESENTED
Under the Texas Disciplinary Rules of Professional Conduct is a lawyer permitted to
advise, for a fee, a pro se litigant in a divorce or related family law matter concerning
self-help forms prepared by the litigant if such services by the lawyer are conditioned
on the litigants signed agreement that no lawyer-client relationship exists between the
lawyer and the litigant? Is the lawyer permitted to limit the scope of his services in such
cases to advice concerning the self-help forms?
STATEMENT OF FACTS
A Texas lawyer wishes to provide, for a fee, a service of reviewing and providing advice
concerning self-help forms prepared by pro se litigants in divorce and similar family
law matters. The lawyer proposes to require that, as a condition for providing such
services, each pro se litigant enter into a written agreement providing that no lawyerclient relationship is established and that the lawyer has no legal or ethical obligation to
provide legal representation to the pro se litigant. If a lawyer-client relationship is
determined to exist in these circumstances, the lawyer wishes to limit the scope of his
services to a review of, and advice concerning, the self-help forms.
DISCUSSION
There is no provision of the Texas Disciplinary Rules of Professional Conduct that
expressly describes when a person who is licensed to practice law is acting as a lawyer.
The Preamble: A Lawyers Responsibilities of the Texas Disciplinary Rules discusses in
paragraph 2 various functions a lawyer performs as a representative of clients, including
the role of acting as an advisor in which a lawyer provides a client with an informed
understanding of the clients legal rights and obligations and explains their practical
implications.
A relationship of lawyer to client is a contractual relationship and results from the mutual
agreement and understanding of the parties about the nature of the work to be done. To
establish a lawyer-client relationship, the parties must explicitly or by their conduct
manifest an intention to create such a relationship. LeBlanc v. Lange, 365 S.W.3d 70, 79
(Tex. App.-Houston [1st Dist.] 2011, no pet.) (citations omitted).
Here the lawyer is providing for a fee to pro se litigants a service of reviewing forms
relating to legal proceedings and advising the litigants concerning the use of the forms in
the legal proceedings. The intent is to review the forms and point out areas of potential
concern that may require further inquiry, such as child support and retirement benefits.
Thus, the lawyers role is as an advisor in which he has explicitly agreed to provide the
client with an understanding of legal rights and obligations. These services constitute the
practice of law by the lawyer. Consequently, the lawyer has obligations and
responsibilities as a lawyer arising from the nature of the relationship with the pro se
litigant. These obligations include the obligation to protect the clients confidential
information and to represent the client with loyalty and diligence. In such circumstances,
51

the lawyer cannot seek to avoid his obligations as a lawyer by seeking the clients
agreement to a disclaimer of the existence of a lawyer-client relationship. Moreover,
requiring such a clearly invalid disclaimer in the lawyers agreement with the client may
in itself constitute deceptive or misleading conduct in violation of Rule 8.04(a)(3), which
prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit or
misrepresentation[.]
Rule 1.02(b) of the Texas Disciplinary Rules of Professional Conduct provides that [a]
lawyer may limit the scope, objectives and general methods of the representation if the
client consents after consultation. As long as a lawyer ensures that his client is aware of
and consents to the limited scope of the lawyers services and the risks associated with
proceeding without full legal representation, limiting the scope of the lawyers services is
permitted under the Texas Disciplinary Rules. Thus, the lawyer in the circumstances
considered here may limit the scope of his services to advice concerning the self-help
forms so long as it is clear to the client that the lawyers services are so limited.
It should be noted that because the lawyer in these circumstances has a lawyer-client
relationship with a spouse in a divorce or related proceeding, the lawyer is not permitted
to provide legal services to the other spouse in the same proceeding. Even though the
lawyers services with respect to a divorce may be limited in scope by agreement, a
lawyer is not permitted to advise both spouses in a divorce proceeding since such spouses
are adverse parties in a litigation matter. See Rule 1.06(a) of the Texas Disciplinary
Rules of Professional Conduct; Professional Ethics Committee Opinion 583 (September
2008). Moreover, in such circumstances, a lawyer must take care that the spouse that is
not being advised by the lawyer does not mistakenly believe that the lawyer is providing
advice to such spouse.
CONCLUSION
Under the Texas Disciplinary Rules of Professional Conduct a lawyer is not permitted to
advise, for a fee, a pro se litigant in a divorce or related family law matter concerning
self-help forms prepared by the litigant if such services by the lawyer are conditioned
on the litigants signed agreement that that no lawyer-client relationship exists between
the lawyer and the litigant. A lawyer is permitted under the Texas Disciplinary Rules to
limit by agreement the scope of his services in such cases to advice concerning the selfhelp forms. A lawyer providing limited advice with respect to self-help forms in
divorce and related cases is not permitted to advise both parties in such proceedings.

52

Speaker Contacts and Bios

2014 Immigration Fundamentals: Faculty Contact Info

Ms. M. Elizabeth "Liz" Cedillo-Pereira
Cedillo-Pereira & Associates, PLLC
433 Las Colinas Blvd E Ste 1225
Irving, TX
Phone: 214-981-9442
Fax: 214-740-1628
mecp@cpimmigrationlaw.com

Ms. Jacqueline L. Watson

Law Office of Thomas Esparza, Jr., P.C.
1811 S 1st St
Austin, TX
Phone: 512-441-0062
Fax: 512-441-0725
jackie@tomesparza.com

Ms. Barbara Hines

The University of Texas School of Law
727 E. Dean Keeton, Immigration Clinic
Austin, TX
Phone: 512-232-1310
Fax: 512-232-0800
bhines@law.utexas.edu
Mr. Paul Parsons
Paul Parsons, PC
704 Rio Grande St
Austin, TX
Phone: 512-477-7887
Fax: 512-479-6903
parsons@immigrate-usa.com
Ms. Michelle L. Saenz-Rodriguez
Saenz-Rodriguez & Associates, P.C.
2720 N Stemmons Fwy Ste 1200
Dallas, TX
Phone: 214-637-5700
Fax: 214-637-5707
Michelle@sralawonline.com
Ms. Vanna Slaughter
Catholic Charities of Dallas, Inc.
9461 Lyndon B Johnson Fwy Ste 100
Dallas, TX
Phone: 214-634-7182
Fax: 214-634-2531
vanna@ccdallas.org
Ms. Stephanie Rodriguez Taylor
American Gateways
314 E Highland Mall Blvd Ste 501
Austin, TX
Phone: 512-478-0546
stephaniet@americangateways.org

Immigration Fundamentals 9/30/14

Mary Elizabeth (Liz) Cedillo-Pereira

Liz Cedillo-Pereira is the managing attorney with Cedillo-Pereira and Associates. Liz is Board Certified
in Immigration and Nationality law by the Texas Board of Legal Specialization. In 2007, Liz co-founded
the American Immigration Lawyers Association (AILA) -Dallas Know Your Rights project for detained
individuals and is a member of AILA -DREAM Defenders & AILA Military Assistance Program. In 2013,
Liz was appointed to the American Bar Association National Commission on Immigration. She was
recognized as a Best Lawyer in America in 2012, 2013 and 2014.

Liz has received numerous awards for her dedication to the legal profession, advocacy and community
engagement. In 2014, Liz received the prestigious Ohtli recognition from the Republic of Mexico, the
highest recognition for non-Mexican citizens for her work in the area of immigrant rights and
advocacy. In 2013, Liz received the Groundbreaker Award from the Greater Dallas Hispanic Chamber
of Commerce and the Young Entrepreneur Award by the Consulate General of Mexico of Dallas and a
2013 Emerge Leadership Award presented by PODER Hispanic Magazine; 2010 Congressional Hispanic
Caucus Institute Service Award for Developing Next Generation of Latino Leaders. She is an American
Marshall Fellow (2003) and American Council on Germany Immigration Study Tour participant (2011).
Liz is a member of numerous civic organizations focusing on educational pipeline initiatives including
Board of Governors with the Dallas Foundation, Board of Dallas Hispanic Bar Foundation, Hispanic 100
Community Philanthropy Chair, Advisor on SMU Hispanic Leadership Committee, Advisory Committee
for Irma Rangel Leadership School for Girls, Advisory Committee for University Crossroads and Cofounder of Congressional Hispanic Caucus Dallas Alumni Chapter. Liz enjoys writing a column for
Latina Style Magazine to inform and empower women on legal topics and passionate about promoting
educational initiatives for first-generation college bound students.
Liz is married to Oscar Pereira, an aeronautical engineer, and blessed with awesome children.

Barbara Hines is the co-director of the immigration clinic and a clinical professor of law at the
University of Texas School of Law. She is Board Certified in Immigration and Nationality
Law by the Texas Board of Legal Specialization. She has received numerous awards for her
work including the 1992 American Immigration Lawyers Association (AILA) Jack Wasserman
Award for Excellence in Litigation; the 1993 AILA Texas Chapter Litigation Award; the 2002
Texas Law Fellowships Excellence in Public Interest Award; the 2007 AILA Elmer Fried
Excellence in Teaching Award; the 2009 MALDEF Excellence in Legal Services Award; and
the 2010 National Lawyers Guild Carol King Award. In 2000, she was named one of the 100
best lawyers in the state by the Texas Lawyer publication.
Professor Hines was a Fulbright scholar in Argentina in 1996 and 2004. She focused her
research on Argentine immigration law. She has litigated many issues relating to the
constitutional and statutory rights of immigrants in federal and immigration courts including
the lawsuit leading to the closure of the Hutto immigrant family detention center. . She serves
on the Board of Directors of the National Immigration Project of the National Lawyers Guild.

PAUL PARSONS
ATTORNEY AT LAW
704 RIO GRANDE
AUSTIN, TEXAS 78701
(512) 477-7887
parsons@immigrate-usa.com
http://www.immigrate-usa.com
Board Certified, Immigration and Nationality Law
Texas Board of Legal Specialization
Practiced immigration & nationality law in Austin since 1978
Appointed by Governor Ann Richards as Chair of the Governors Advisory Committee on
Immigration & Refugees
Chair of the State Bar of Texas Committee on Laws Relating to Immigration & Nationality
(1990-2005)
Chair of the Examinations Committee on Immigration for the Texas Board of Legal
Specialization (1986-1995)
Appeared before Senator Barbara Jordans U.S. Commission for Immigration Reform
Served as elected Director on the Board of Governors of the American Immigration Lawyers
Association (AILA) (1990-1996)
Past Chair of the Texas-Oklahoma-New Mexico Chapter of AILA
Past Chair of AILAs national Consumer Protection Committee
Past President of the Austin Chapter, Federal Bar Association
Past Board Member of the American Immigration Council (AIC, previously AILF)
Awards:
Sam Williamson Memorial Award from AILAs Texas-Oklahoma-New Mexico Chapter for
excellence in advancing the practice of immigration law
AILAs national Pro Bono Award for efforts to provide pro bono representation
Outstanding Community Service Award of the Austin Chapter of the Federal Bar Association
Texas-Oklahoma-New Mexico Chapter of AILAs Service Award for contributions to the
practice of immigration law

Michelle L. Saenz-Rodriguez
Saenz-Rodriguez & Associates. P.C.
2720 N. Stemmons Freeway, Suite 1200
Dallas, Texas 75207
214-637-5700
Michelle@sralawonline.com
Michelle Saenz-Rodriguez is the co-founder of Saenz-Rodriguez &
Associates in Dallas, Texas. Now in her 23rd year of practice, Michelle was
a Judicial Law Clerk under the Attorney Generals Honor program for seven
Immigration Judges in Harlingen, Texas. She practices immigration law with
an emphasis on removal litigation. Michelle and her husband George
established their own practice in 1995 and represent immigrants from all
over the world.
Michelle has been selected several times as a Texas Super Lawyer by
Texas Monthly Magazine and has been named one the Best Lawyers in
America in Immigration for the last 10 years. Saenz-Rodriguez &
Associates has also been named one of the Best Immigration Law Firms in
America for 2014. She is a member of the American Immigration Lawyers
Association (AILA), where she was Past Chair for the Texas Chapter, she is
the Dallas EOIR Liaison and co-chairs the Dallas Taskforce for
Unaccompanied Minors. Michelle is also on the ABA Commission on
Immigration. She has also been involved in promoting pro bono
representation for children who are detained by the Department of
Homeland Security. She volunteers much of her time to mentor young or
newly admitted lawyers and is active in her community.

Vanna Slaughter is Division Director for Catholic Charities of Dallas, Immigration and Legal Services,
where she has represented non-citizens in their immigration legal matters for twenty-nine years. Vanna is
accredited by the U.S. Department of Justice to representative non-citizens and immigrants before the US
Department of Homeland Security and the Board of Immigration Appeals.
Vanna has served as a non-attorney, public member on numerous committees and programs of the State
Bar of Texas (SBOT), including: Laws Relating to Immigration and Nationality Committee (1990 - 2007),
the SBOT Region VI Grievance Committee (2001 - 2007); and the SBOT Planning Committee for the
Immigration Law Institute (2004 Present). Vanna served on the Texas Access to Justice Commission, a
joint endeavor of the Supreme Court of Texas and the State Bar of Texas, as one of its founding
Commissioners (2001 2004). Vanna was recently appointed by the Supreme Court of Texas to the
Grievance Oversight Committee (GOC).
Vanna is an active member of the Catholic Legal Immigration Network (CLINIC) and provides regular
training and technical assistance to CLINIC affiliate offices on the management of non-profit immigration
programs. Vanna is avidly interested in immigration policy. She contributed as a participant at the First
Independent University in Warsaw, International Immigration and Naturalization Conference: Global
Problems on Immigration in Warsaw, Poland in June 2003. She also contributed in April 2012 to the
American German Council (AGC), 2012 AGC Immigration Study Tour in Berlin, Germany, where she was
one of 14 U.S. immigration practitioners selected to study US-German comparative immigration policies.
In 2007 Vanna was selected by the National Immigration Forum as a recipient of the Keepers of the
American Dream award. In 2013 in conjunction with CLINICs 25th Anniversary, CLINIC awarded Vanna
the Immigrant Justice Award. In 2014 Vanna received the Dallas Hispanic Bar Associations Presidents
Award for her work with unaccompanied children from Central America.
Prior to her work in the immigration field Vanna worked in overseas development for Catholic Relief
Services in South America.
Vanna earned an undergraduate degree from the University of Texas at Austin. She received her Masters
of Social Work Degree from Our Lady of the Lake University in San Antonio. She is licensed by the Texas
Board of Social Work Examiners as a Licensed Clinical Social Worker (LCSW).

Stephanie Rodriguez Taylor

American Gateways (formerly the Political Asylum Project of Austin)
314 E. Highland Mall Blvd., Ste. 501
Austin, Texas 78752
Phone: (512) 478-0546 x205
Fax: (512) 476-9788
Email: StephanieT@americangateways.org

STEPHANIE RODRIGUEZ TAYLOR is originally from Brownsville, Texas, and obtained her bachelor's
degree from the University of Texas at Brownsville. During law school at the University of Texas School of
Law, Stephanie represented low-income immigrants before the immigration court in San Antonio and
worked on conditions monitoring at the T. Don Hutto detention center through her work with the UT
Immigration Clinic. In 2009, she was selected as the National Immigration Project's Haywood Burns
Memorial Fellow. In 2010, Stephanie received the Julius Glickman Fellowship in Public Interest Law which
initially funded her work on criminal-immigration issues at American Gateways (formerly the Political
Asylum Project of Austin), in Austin, Texas. For the last two years, Stephanie has worked on detention
issues in Central Texas as a staff attorney at American Gateways. She is a member of the National
Immigration Project of the National Lawyers Guild.

JACQUELINE L. WATSON is a native of El Paso and undergraduate alum of the

University of Texas at El Paso. She earned her J.D. at the University of Texas School of
Law. Certified in Immigration and Nationality Law by the Texas Board of Legal
Specialization, Jacqueline has practiced immigration law in Austin since 1999. She is
currently an associate at the Law Office of Thomas Esparza, Jr. and serves the Texas,
Oklahoma, and New Mexico AILA Chapter as its Vice-Chair.

Participant List

Roster

2014 Fundamentals of Immigration and Nationality Law

Oct 15, 2014, Austin, TX
Veronica Arredondo
SahadiLaw
Pharr, TX

Max L. Christenson
Attorney at Law
Odessa, TX

Emily Bartholomew
Probar
Harlingen, TX

Michael J. Churgin
University of Texas Law School
Austin, TX

Jessica Bernal
Catholic Charities
Omaha, NE

Cristina Cigarroa
American Gateways
Austin, TX

Daniel Berner
Berner Law
Austin , TX

Jo Clifton
Austin, TX

Caitlin Boehne
Equal Justice Center
Austin, TX
Ann Brown
Alan Gordon Immigration Law
Charlotte, NC
Desiree Brutocao
Cornell Smith Mierl & Brutocao, LLP
Austin, TX
Blake Burns
Ft. Worth, TX
Edelweiss Camacho
Baptist Immigration Center
McKinney, TX
Jesus Ricardo Canales
Attorney at Law
Brownsville, TX

Teresa Coles-Davila
Attorney at Law
San Antonio, TX
Laura Contreras
Law Office of Domingo Garcia
Odessa, TX
Penny S. Curry
Attorney at Law
McAllen, TX
Heather De La Garza
San Juan, TX
Jack De Luna
The Law Office of George C. Lobb
Austin, TX
Maria Esther Delao
Hispanic American Mission, Inc.
Oklahoma City, OK

Anthony Cantrell
San Antonio, TX

Nelly Diaz
Diocese of San Angelo - Immigration Services
San Angelo, TX

Mary Capello
The Law Office of Mary Capello
Laredo, TX

Lee Difilippo
Difilippo Limited Partnership
Austin, TX

M. Elizabeth "Liz" Cedillo-Pereira

Cedillo-Pereira & Associates, PLLC
Dallas, TX

Xiomara Escalante-Sostre
Law Office of Escalante-Sostre
San Antonio, TX

2014 Fundamentals of Immigration and Nationality Law, Oct 15, 2014, Austin, TX
Vernal Farnum
The Ortiz Law Firm
Irving , TX

Raed Gonzalez
Gonzalez Olivieri LLC
Houston, TX

Anna Fernandes
Almazan & Quintanilla Law Firm
San Antonio , TX

Jodi Goodwin
Attorney at Law
Harlingen, TX

Erin Fichter
Catholic Charities
Omaha, NE

Brian Graham
Strasburger & Price, LLP
Austin, TX

Richard S. Fischer
Attorney at Law
Nacogdoches, TX

Gloria Granados
Baptist Immigration Center
Plano, TX

Al Flores
Gringo's Mexican Kitchen
La Porte, TX

Lisa Curry Gray

Attorney at Law
Austin, TX

Eugene J. Flynn
Attorney at Law
Dallas, TX

Raul Guerra
Laredo, TX

James Fowler
Thurgood Marshall School of Law
Houston, TX
Raul Garcia
Attorney at Law
Austin, TX
Jessica L. Garcia
The Garcia Law Firm, PLLC
Houston, TX
Francisco J. Garca
The University of Texas Medical Branch at Galveston
Galveston, TX

Richard A. Gump Jr.

The Law Offices of Richard A. Gump, Jr. P.C.
Dallas, TX
Mona Gupta
Gupta & Wiora, P.C.
Addison, TX
Bruce E. Harrison
Sly Jane Bay PLLC
Helotes, TX
Laura Hernandez
Law Office of Escalante-Sostre
San Antonio, TX

Cerise R. de Garduo
Brownsville, TX

Dolores Alvarado Hibbs

Texas Department of Agriculture
Austin, TX

Lazara Garza
South Texas Immigration Council
Harlingen, TX

Barbara Hines
University of Texas School of Law
Austin, TX

Harry Gee, Jr.

Attorney at Law
Houston, TX

William Jang
Law Office of William Jang, PLLC
Austin, TX

2014 Fundamentals of Immigration and Nationality Law, Oct 15, 2014, Austin, TX
Newell Jarvis
Jarvis Law Firm
Tyler, TX

Ed Martinez
Attorney at Law
Austin, TX

Joanna Jefferson
The University of Texas School of Law
Austin, TX

Steven Martinez
Attorney at Law
Boerne, TX

Anjela Jenkins
South Texas Civil Rights Project
Alamo, TX

Eva Martinez
South Texas Immigration Council
Harlingen, TX

Tanya Johns
P180 Investments, LLC
Austin, Texas

Rocio Martinez
Law Office of Francisco Hernandez
Fort Worth, TX

Susan King
Strasburger & Price
Austin, TX

Eliana Maruri
Rubin Law Firm, PLLC
Austin , TX

Beverly Lawson
Inactive
Austin, TX

Ada Matos
The Ortiz Law Firm
Irving, TX

Judy J. Lee
FosterQuan, LLP
Houston, TX

Ricky McDaniel
R. Scott McDaniel
Austin, TX

Nancy Lobato
The Diaz Firm, PLLC
Austin, TX

Michael F. Miller
Galveston County Sheriff's Office
Galveston, TX

Julia Longoria
DMCA LLP
San Antonio, TX

Holly Miranda
American Gateways
Austin, TX

Jocelyn Loredo
Buttry & De Los Santos, PLLC
Austin, TX

Imran B. Mirza
Law Office of Imran Mirza, PC
Houston, TX

Daniella Lyttle
LYTTLE LAW FIRM, PLLC
Austin , TX

Heather Lindsey
Law Office of Amanda Mitchell Diaz
Austin, TX

ARTURO MARTINEZ
LAW OFFICE ARTURO MARTINEZ
PHARR, TX

Michelle Mladek
Immigration Assistance Services
Ruidoso, NM

Rachel Magruder
Law Student
Dallas, TX

Annie Monahan
Attorney at Law
San Antonio, TX

2014 Fundamentals of Immigration and Nationality Law, Oct 15, 2014, Austin, TX
Carlos Monarrez
Law Office of Valdez, Martinez & Monarrez PLLC
McAllen, TX
Mayra Mora
Mora Law
Houston, TX
Sofia Morales
Toppins Law Firm, P.C.
Houston, TX
Emilia Moreno
Diocese of San Angelo - Immigration Services
San Angelo, TX
Georgios Moros
Sly Jane Bay PLLC
Helotes, TX
Clarisia Murillo
SahadiLaw
Pharr, TX
Nikiya Natale
Refugee Services of Texas
Dallas, TX
Victoria Natera
Law Office of Francisco Hernandez
Fort Worth, TX
Trish Niswander
Refugee Services of Texas
Austin, TX
Maria De Jesus Nunez
Attorney at Law
Victoria, TX
Jaime G. Obregon
Christian Public Relations
Fort Worth, TX
Marcia Olivo
Jarvis Law Firm
Tyler, TX
Melissa Oosterhof
Oosterhof & Bray, PLLC
Dallas, TX

Rocio Ortiz
Fort Worth, TX
Luis Manuel Paredes Jr.
Manuel Paredes Law Firm, PLLC
Austin, TX
Paul Parsons
Attorney at Law
Austin, TX
Sandra K. Patton
Texas Alcoholic Beverage Commission
Austin, TX
Chris Payne
The Law Office of Christopher B. Payne, PLLC
Laredo, TX
Cynthia Paz
Houston, TX
Benigno Pena
South Texas Immigration Council
Harlingen, TX
Benigno Pena Jr.
South Texas Immigration Council
Harlingen, TX
L. Aaron Pea Jr.
Texas Department of Agriculture
Austin, TX
Gustavo T. Quintanilla
Hall, Quintanilla & Quintanilla
Laredo, TX
Shirin Rahmani
J S Johnson Law PLLC
Fort Worth, TX
Virginia Raymond
Law Office of Virginia Raymond
Austin, TX
Jennifer Rektorik
Weslaco, TX

2014 Fundamentals of Immigration and Nationality Law, Oct 15, 2014, Austin, TX
Samuel Reyes
Law Office of Samuel Reyes
MISSION, TX

Gloria Scott
Attorney at Law
San Antonio, TX

Britny Rocha
Law Office of Elba Rocha, PLLC
Alamo, TX

Megan Sheffield
Equal Justice Center
Austin, TX

George Rodriguez
Saenz-Rodriguez & Associates, P.C.
Dallas, TX

Nancy Taylor Shivers

Shivers & Shivers
San Antonio, TX

Adriana Rodriguez
Texas Riogrande Legal Aid, Inc.
Laredo, TX

William L. Sims, Esq.

Attorney Advisor-DoD
Monterey, CA

Brandy Rodriguez
Law Office of Domingo Garcia
Odessa, TX

Vanna Slaughter
Catholic Charities of Dallas
Dallas, TX

Jossy Rogers
Catholic Charities of Omaha
Omaha, NE

Yari Suarez
Law Office of Escalante-Sostre
San Antonio, TX

Carol Root
Strasburger & Price, LLP
Austin, TX

Brooke Swindle
The University of Texas School of Law
Austin, TX

Victoria Rossi
Law Office of Virginia Raymond
Austin, TX

Stephanie Taylor
American Gateways
Austin, TX

Victoria Ruiz
ProBAR
Harlingen, TX

Emilia Taylor
Sly Jane Bay PLLC
Helotes, TX

Michelle L. Saenz-Rodriguez
Attorney at Law
Dallas, TX

J Tellez
Garcia & Garcia Attorneys at Law
San Antonio, TX

James Sahadi
SahadiLaw
Pharr, TX

Myriam Torres
Hispanic American Mission, Inc.
OKC, OK

Rebecca Saldana
Saldana Collins Law Firm, PLLC
McKinney, TX

Alex Macias Torres

The Torres Law Firm
Bellaire, TX

Ernesto Sanchez
Diocesan Migrant & Refugee Services, Inc.
El Paso, TX

Adam Tran
Hoang & Tran PLLC
Fort Worth, Texas

2014 Fundamentals of Immigration and Nationality Law, Oct 15, 2014, Austin, TX
Clarissa L. Valdez
FValdezLaw PC
Houston, TX
Linda Vega
Vega Law Firm
Houston, TX
Mr. John M. Vernon
The Vernon Law Group, PLLC
Dallas, TX
Steven L. Walden
RAICES - Refugee & Immigrant Center
San Antonio, TX
Kathleen Campbell Walker
Cox Smith
El Paso, TX
Jacqueline L. Watson
Law Office of Thomas Esparza, Jr.
Austin, TX
Rachelle White
RMW White Law Group, PLLC
Houston, TX
Peter D. Williamson
Chamberlain Hrdlicka
Houston, TX
Sarah E. Woelk
Casa Marianella
Austin, TX
Michael Wynne
McDermott Will & Emery
Houston, TX
Edna Yang
American Gateways
Austin, TX
Xavier Ybarra
San Antonio, TX
Norma Zepeda
Sly Jane Bay PLLC
Helotes, TX