The American Immigration Lawyers Association (AILA) selected Attorney Powers from their 15,000 members for the 2017 Advocacy Award for outstanding efforts in support of AILA’s legislative agenda.
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Powers Law Group, P.C. is an immigration law firm focused 100% on U.S. Immigration and Nationality Law. Based in Houston, Texas, we represent clients worldwide. Focusing solely on U.S. immigration law empowers us to provide specialized service for all of our clients’ immigration needs.
Ruby L. Powers, the founding immigration attorney, has personal experience navigating the immigration processes and brings this experience and point of view to each client with compassion, honesty, and understanding.
What further sets the Powers Law Group apart from other firms is the level of dedication each client receives, which allows for the attention to detail necessary in immigration law. With technology, we are able to provide personal attention through various means of communication to our clients, regardless of location.
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By Provisional Waiver Immigration Attorney Ruby L. Powers
November 15, 2017
What is an I-601A waiver (Provisional Waiver)?
The I-601A, Provisional Unlawful Presence Waiver, is a waiver that was introduced in 2013 under the Obama Administration. This waiver allows certain individuals, who entered the United States unlawfully, to be able to pursue residency while maintaining family unity, granted they meet the criteria of extreme hardship and have a qualifying relative. While this program still requires that individual to leave temporarily abroad for their consular interview and immigrant visa, as opposed to the waivers that preceded, the time a family spends apart is significantly reduced and, in many cases, is the only available option for legal permanent residency. This program has proven to be successful, and while the concept of leaving the United States may be frightening, it not to be feared if you have an experienced attorney by your side.
At the Powers Law Group P.C., we pride ourselves in successfully guiding our clients through the consular processing and I-601A waivers process. In recent months, we have seen a reduction in the adjudication period for I-601A waivers – from 7 months to 4 months. On August 29, 2016, an expansion of eligibility for such waivers began to be implemented to applicants including allowing Legal Permanent Residents to be eligible as Qualifying Relatives and allowing other visa categories, not just immediate relatives, to participate, among some other provisions. Furthermore, in December 2016, a clarification of the extreme hardship standard was made which makes the process easier and clearer for adjudicators, clients and attorneys to meet and/or understand.
What does an I-601A waiver require?
In short, the expanded I-601A waiver requires that you have a Legal Permanent Resident (LPR) or United States Citizen (USC) parent or spouse – whom is considered your qualifying relative- that can show extreme hardship whether it be financially, emotionally, medically, and/or mentally, as a direct result from your absence (separation) OR extreme hardship in the event of the qualifying relative’s relocation to your country. Children (whether it be adult or minor) do not qualify to be qualifying relatives; with that said, to meet the extreme hardship standard, affidavits from you and your qualifying relative are suggested along with supporting documentation of the facts and events stated on your affidavits. This type of waiver is not appealable; however, could be re-filed in the event of a denial. It is important you schedule a consultation with an immigration attorney with experience in waivers to determine whether you or your loved one qualifies for this type of waiver.
What is the time expectancy of an I-601A waiver?
Overall, the entire I-601A provisional waiver process, in the case of an immediate relative spouse petition, for example, from the initial consult to the U.S. Consulate interview, is approximately 18 -24 months. Details for this timeline are as follows:
- Step 1: I-130, Petition for Alien Relative Submission
- (8-10 months) Adjudication period. Receipt notices are received within 2-3 weeks of submission.
- Step 2: National Visa Center (NVC) Part I
- (1 month) Following approval of I-130 by USCIS; USCIS sends the file to NVC for processing and issuing fee bills associated with Immigrant Visa Application and Affidavit of Support.
- Step 3: I-601A, Provisional Unlawful Waiver Submission and Adjudication
- (4 months) Adjudication period. Receipt notices are received within 2-3 weeks of submission.
- Step 4: NVC Part II
- (2-3 months depending on if a request for evidence)
- Submission of I-864 and DS-260 among other documents
- Step 5: Visa appointment
- (1-3 months) for notice of interview depending on the consular post.
- Medical Exam
Please note that this timeline only takes into consideration recently-noted trends in processing times by the government, and not any additional time that preparation of documentation by the client and attorney may take.
The Powers Law Group has helped thousands of families stay united and take the leap to legal permanent residency and a more secure future. It is important to your journey to do your research in hiring the attorney and firm to assist you through this process. Be aware of ‘notario’ fraud and people or groups offering to “fill out forms” for you as immigration law is more complex than this and often people become victims of unauthorized practice of law. Learning about a firm’s experience with waivers and knowledge of various countries, including your own, are essential. As they say, a journey of a thousand miles starts with the first step.
The Trump administration continues its anti-immigrant agenda by ending TPS for some countries and threatening to remove the designation for more. Most recently, the administration announced it will terminate Nicaraguan TPS, with the last day of TPS to be Jan. 5, 2019. This follows the termination of TPS status for Sudan (last day:Nov. 2, 2018). Honduran TPS has been extended for 6 months.
- DHS ends protected immigration status for Nicaraguans, but Hondurans get extension(Washington Post)
- Trump administration to end TPS for Nicaraguans. No decision on Haitians, Salvadorans(Miami Herald)
Updates on Temporary Protected Status
- Sudan:TPS for Sudan received a 12-month termination in Oct. 2017. The last day of TPS for the Sudan will be Nov. 2, 2018.
- South Sudan:TPS for South Sudan received an 18-month extension in September 2017.
- Nicaraguareceived a 12-month termination in Nov. 2017. The last day of TPS for Nicaragua will be Jan. 5, 2019.
- Hondurasreceived a 6-month extension in Nov. 2017.
Upcoming TPS decision dates
- Nov. 23, 2017: Haiti
- Jan. 8, 2018: El Salvador
- Jan. 30, 2018: Syria
- Apr. 25, 2018: Nepal
- July 5, 2018: Yemen
- July 19, 2018: Somalia
- March 3, 2019: South Sudan
For up-to-date information about TPS expiration dates, renewal dates, articles, and practice advisories, please visit CLINIC’s great resources at https://cliniclegal.org/tps
Written by Ruby Powers on November 9, 2017 @ 12:01 pm
Filed under: Immigration Law
U.S. Citizenship and Immigration Services (USCIS) recently announced that it is instructing its officers to apply the same level of scrutiny to both initial petitions and extension requests for certain nonimmigrant visa categories. The guidance applies to almost all nonimmigrant classifications filed using Form I-129, Petition for Nonimmigrant Worker.
Adjudicators are instructed to thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought. The updated guidance instructs officers to apply the same level of scrutiny when reviewing nonimmigrant visa extension requests even where the petitioner, beneficiary and underlying facts are unchanged from a previously approved petition. While adjudicators may ultimately reach the same conclusion as in a prior decision, they are not compelled to do so.
The previous policy instructed officers to give deference to the findings of a previously approved petition, as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination. The updated policy guidance rescinds the previous policy.
Under the law, the burden of proof in establishing eligibility for the visa petition extension is on the petitioner, regardless of whether USCIS previously approved a petition. The adjudicator’s determination is based on the merits of each case, and officers may request additional evidence if the petitioner has not submitted sufficient evidence to establish eligibility.
Petitioners will now see more Requests for Evidence from the Service Centers. You should work closely with an immigration lawyer at every step in the process.
Written by Ruby Powers on October 31, 2017 @ 10:17 am
Filed under: citizenship
USCIS announced that adjustment of status interviews are now required for all employment based immigration. On October 1 USCIS began phasing in this requirement.
In the past USCIS waived the interview requirement for most employment based applications for adjustment of status to permanent resident. Under the law it could require an interview on a case by case basis, but rarely did. These would commonly be conducted when an individual had a long priority date or if there was any question of fraud. The new policy complies with Executive Order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” and is part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.
The current policy requires that all applicants attend an interview at their local USCIS office. On a recent teleconference USCIS officials stated that the interview will strictly focus on the application to adjust status (Form I-485) and the individual’s eligibility for an immigrant visa. The officer should conduct the interview following the application: confirmation of biographical information, valid entry to the U.S., maintenance of valid immigration status, criminal history, etc. The officer should not re-adjudicate the approval of the employer’s petition for immigrant worker (Form I-140) as the decision was made at the Service Center by officers specially trained to adjudicate these applications.
Dependents are also required to attend the interview. For a spouse the officer will confirm a valid marriage and will use the guidelines provided above. For children USCIS will confirm a valid parent – child relationship. USCIS is looking into waiving the interview requirement for younger children and will make an announcement soon.
The agency anticipates a 17% increase to workload at the local offices. At this time there are no plans to hire additional personnel to address the increase. This could cause further delays in all areas of immigration because the local offices are already at capacity with the family based interviews.
Please be sure to discuss this new requirement with an immigration lawyer. Legal representation is allowed at the interview and an attorney specializing in immigration law can help you determine if one is recommended in your situation.
Written by Ruby Powers on October 31, 2017 @ 10:04 am
Filed under: Processing of Applications and Petitions
Immigrants now face stricter rules regarding misrepresentation. The Department of State (DOS) revised the section of the Foreign Affairs Manual (FAM) guidelines that deal with misrepresentation. Section 9 FAM 302.9-4(B)(3) applies to foreign nationals in the US “who conduct themselves in a manner inconsistent with representations they made to consular officers concerning their intentions at the time of visa application or to DHS when applying for admission or for an immigration benefit.”
The FAM now includes an updated section called “Inconsistent Conduct Within 90 Days of Entry.”
The exact language is as follows:
If an alien violates or engages in conduct inconsistent with his or her nonimmigrant status within 90 days of entry, as described in subparagraph (2)(b) below, you may presume that the applicant’s representations about engaging in only status-compliant activity were willful misrepresentations of his or her intention in seeking a visa or entry.
If a U.S. consular officer “becomes aware of derogatory information indicating that an alien in the United States who has a valid visa, may have misrepresented his or her intentions to you at the time of visa application, or to DHS at the port of entry or in a filing for an immigration benefit” they should “bring the derogatory information to the attention of the Department for potential revocation.”
Why this is of critical importance:
This means that DHS and DOS will look now closely at an individual’s activity in the first 90 days after entry to the US. If an individual indicated that their intent to travel to the US was for tourism and within the first 90 days takes action to change their status (i.e., applies to change status to a student or a non-immigrant worker or marries a US citizen, etc.) it could result in severe repercussions, including being barred from entry to the U.S. for life. (See section 212(a)(6)(C) of the Immigration and Nationality Act). Thus, it is crucial that foreign nationals and immigration attorneys fully understand the new FAM guidelines.
What to keep in mind:
Conduct that violates or is otherwise inconsistent with a foreign national’s nonimmigrant status
- Enrolling in a course of academic study if unauthorized to do so;
- Engaging in unauthorized employment;
- Marrying a U.S. citizen or Legal Permanent Resident (LPR) and taking up residence in the U.S. after entering on nonimmigrant B (Visitor) or F (Student) status, or any other status prohibiting immigrant intent; and
- Any other activity for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment.
Presumption of Willful Misrepresentation Based on Timing of Conduct
The FAM states that there will be a presumption of willful misrepresentation based on an alien’s activity within 90 days after entry to the U.S. The burden of proof falls on the alien, meaning that he or she must “establish that his or her true intent at the time of the presumptive willful misrepresentation was permissible in his or her nonimmigrant status.” Consular officers will give an alien “the opportunity to rebut the presumption of willful misrepresentation by presentation of evidence to overcome it.” However if an alien engages in conduct inconsistent with their nonimmigrant status more than 90 days after entry into the U.S., then there is no presumption of willful misrepresentation (though U.S. consular officers may still seek to revoke the visa upon “reasonable belief that the alien misrepresented his or her purpose of travel at the time of the visa application or application for admission.”)
Exercise caution when filing for adjustment of status.
From the updated guidelines, it seems that DOS is targeting aliens who enter through the Visa Waiver Program (which permits travel for tourism or business for stays ≤ 90 days) or on a B-1/B- 2 visitor visa and apply to adjust to LPR status. Please note that USCIS’ Adjudicator’s Field Manual has not been updated to match the new FAM guidance.
It should be noted that the Board of Immigration Appeals has established that in the case of adjustment of status of immediate relatives, the equity of the immediate relative relationship takes precedent over “preconceived intent.” However, foreign nationals who have entered the U.S. on a B or F visa or any other nonimmigrant visa that prohibits immigrant intent should take caution regarding the risks of filing an adjustment of status, extension of status, or change of status within 90 days after entry. Even if such filings are made 90 days after entry, the individual should demonstrate that something happened to cause them to alter their original plans and thus to want to change their immigration status.
But what happened to the 30/60 Day Rule?
The updated FAM has done away with the “30/60 day rule” regarding adjustment of status after entry on a nonimmigrant visa. The 30/60 day rule can be summed up as follows:
- If an alien files for adjustment within 30 days of entry, the government can presume that the person misrepresented their intention in seeking a visa or entry. A finding of misrepresentation or fraud can result in a lifetime bar to US entry.
- If the act occurs more than 30 days but less than 60 days after entry, no presumption of misrepresentation results. However, if there is reasonable belief that of misrepresented intent, then the alien must present evidence to the contrary.
- If the act occurs more than 60 days after admission into the US, there is generally no basis for a misrepresentation or inadmissibility finding.
USCIS’ policy manual has not been updated with the 30/60 day rule, but it may be in the future. The FAM makes no mention of retroactive application of the change but stated that it is effective September 1, 2017.
Foreign nationals who depended on on the 30/60 day rule and have pending adjustment of status applications should consult an immigration attorney to plan how to best handle their cases.
Is consular processing for an immigrant visa a better option for me?
Although there is no certainty that USCIS will adopt this new DOS rule, securing LPR status through consular processing abroad is becoming the preferred option over filing for adjustment of status, especially considering potential delays from USCIS expanding in-person interviews for adjustment of status applications. While cases vary, it may be advisable to withdraw your adjustment of status application and file a Form I-824 to request that the approval notice of the underlying immigrant visa petition be sent to a U.S. consular post.
Written by Ruby Powers on September 28, 2017 @ 12:02 pm
Filed under: Immigration Law