The Expansion of the Provisional Waiver (I-601A): Allowing legal permanent resident spouses and parents to be qualifying relatives

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The Expansion of the Provisional Waiver (I-601A): Allowing legal permanent resident spouses and parents to be qualifying relatives

By Board Certified Immigration Attorney Ruby L. Powers

August 4, 2016

On July 29, 2016, the Department of Homeland Security (DHS) released a new rule that expanded the program that allows people to apply for provisional waivers. This is very exciting because it will open the door for many more people to be able to get on the path to permanent residency.

What is a provisional waiver?

In US immigration law, the government creates reasons people are not eligible to adjust their status and become lawful. These are called Categories of Inadmissibility. One of these categories is unlawful presence into the US. A Provisional Waiver is a document that the DHS gives an immigrant that says, even though you have this Category of Inadmissibility, we will provisionally forgive you for it and let you apply for legal permanent residency. At first, immigrants, those who had entered illegally or couldn’t adjust status, had to remain outside the US the entire time that they were applying for the Waiver.

What is the old law?

Starting in 2013, DHS began allowing spouses and certain children of U.S. citizens to apply for these provisional waivers while in the United States. This only applied to immediate relatives. These people had to prove that they deserved a waiver because if they were not allowed to stay in the US, their US relative would suffer extreme hardship. This reform in 2013 helped reduce the amount of time that applicants had to wait outside the US. For someone going abroad to the Consular Interview already knowing that he will get a waiver reduces the wait time to weeks, as opposed to months or years. Ultimately, this helps families stay together and many more people were willing to apply.

How has the law been expanded?

First, this waiver is eligible to anyone who would be eligible for provisional unlawful presence waiver, including legal permanent resident or United States spouses or parents who would experience extreme hardship if the immigrant is denied the waiver or could not remain in the US. Next, someone with an outstanding removal order can file for the provisional waiver after getting I-212 approval if they otherwise qualify for the provisional wavier.

Who might be able to apply?

People who are barred due to unlawful presence and have a USC or LPR spouse or parent

 Next Steps?

            Consult a competent and experienced immigration attorney. Make sure you consult from an attorney who is eligible to practice law. Avoid notaries.

Find out if that attorney has experience filing waivers. This is a complex area of immigration law that is evolving, which shows why you need a good attorney. This reform goes into effect August 29, 2016. Schedule a consultation now to see if you are eligible.

Why consider hiring Powers Law Group?

  • Out of nearly a hundred of our provisional waivers since March 2013, only 2 were denied and upon opportunity to refile one of them, it was approved.
  • We have successfully completed waivers for clients from the following countries: Mexico, Philippines, El Salvador, Honduras, India, Nigeria, Lebanon, etc
  • We have had a same-sex provisional waiver approved.
  • We have worked with varied and difficult fact patterns and have been successful in establishing hardship for our clients.
  • We have staff specifically dedicated to waivers and have created a database of shared knowledge and the combined experience that helps us navigate a variety of waivers.
  • Because of technology, we are able to accommodate people who live in other states and other countries to help them through their waiver petitions. In many cases, we never meet our clients in person. But, we can also help those that are more traditional in their means of communication including those without internet or computers.
  • Many of our attorneys and our staff speak Spanish and therefore can assist many people without having to work against a language barrier. In fact, we have at least five languages spoken at our office.

6 Maneras para prepararse para la Acción Ejecutivo de Inmigración del Presidente Obama

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6 Maneras para prepararse para la Acción Ejecutiva de Inmigración del Presidente Obama

Powers Law Group, P.C.

3 Junio 2016

El 18 de abril, la Corte Suprema escuchó los argumentos sobre el programa de Acción Diferida para Padres de Ciudadanos Estadounidenses y de Residentes Permanentes Legales (DAPA, por su acrónimo en inglés) y amplia el Programa de Acción Diferida para los Llegados en la Infancia (DACA, por su acrónimo en inglés). Anticipamos el resultado pronto. No espere al último momento para prepararse. Esto es lo que puede hacer ahora:

  1. Reúna los documentos que muestren que usted tiene un hijo o hija ciudadano o residente légale permanente.

Para DAPA, usted necesitará certificado de nacimiento de los niños ciudadanos estadounidenses o tarjeta de residencia de los niños LPR.

  1. Reúna documentos que muestren su identidad

Puede incluir su pasaporte de país de origen, un certificado de nacimiento con foto, o identificación militar con foto, o cualquier documento de inmigración con su nombre y foto.

  1. Reúna documentos que muestren su presencia en los EE.UU. continuamente desde el 2010

Sugerimos 3-4 documentos para cada año. Ejemplos incluyen recibos de pago, documentos de impuestos, contractos de alquiler, recibos de electricidad, agua, cable, y registros escolares.

  1. Reúna los antecedentes, Verificación de antecedentes de FBI, y presente una aplicación para FOIA (Ley de Libertad de Información) si usted tuvo problemas con inmigración anteriormente.

Para DAPA y DACA, usted necesitar de mostrar que no será una amenaza para la seguridad pública. Reunir estos documentos le ayudaran a un abogado a verificar que usted califica para este beneficio.  

  1. Encuentre un abogado de confianza

Obtener consejos incorrectos puede ser perjudicial. Asegúrese que usted reciba consejo de un abogado de inmigración respetable y con experiencia. Tenga cuidado con notarios y estafas comunes. Lea aquí para entender quien esta calificado para ayudar a inmigrantes con documentos.

  1. Manténgase informado

Lea más información en y entérese sobre las últimas noticias sobre la Acción Ejecutiva

6 Ways to Prepare for President Obama’s Executive Action on Immigration

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6 Ways to Prepare for President Obama’s Executive Action on Immigration

By Board Certified Houston Immigration Attorney Ruby L. Powers

Powers Law Group, P.C.

June 2, 2016

On April 18, the Supreme Court heard oral arguments on Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA) and expanded Deferred Action for Childhood Arrivals program (DACA), and we are anticipating their answer soon. Don’t wait until the last minute to prepare. Here is what you can do now:

  1. Collect documents showing proof of U.S. Citizen or LPR son or daughter

For DAPA, you will need either your birth certificate or green card of your child or children.

  1. Collect documents proving your identity

These can include passport from country of origin, birth certificate with photo ID, school or military ID with photo, any US immigration document with your name and photo.

  1. Collect documents showing you were in the U.S. continuously since 2010

We suggest 3-4 documents per year. Examples include financial documents such as pay stubs, tax records, rental contracts, mortgage documents, vaccination records, bills, school records.

  1. Collect criminal records, FBI background checks, and file a FOIA (Freedom of Information Act) if you had an encounter at the border or any prior immigration issues.

For DAPA and DACA, you will need to show that you are not a threat to public safety. Gathering these documents will help an attorney verity that you qualify for this benefit.

  1. Find an immigration attorney you trust

Getting the wrong advice can hurt. Make sure you are getting advice from a respectable and experienced immigration attorney. Beware of notarios or other common immigration scams. Read here to learn more about who is authorized to help immigrants file documents.

  1. Stay up to date

Research more information on and keep an eye out for any updates regarding Executive Action.

President Obama’s Executive Actions on Immigration – Update – May 2016

Posted on by Ruby Powers in DREAM Act, immigration bill, Immigration Law, Immigration Trends, Legislative Reform, Processing of Applications and Petitions Leave a comment

President Obama’s Executive Actions on Immigration – Update

By Board Certified Houston Immigration Attorney Ruby L. Powers

Powers Law Group, P.C.

May 23, 2016

On November 20, 2014, President Obama announced a series of executive actions to limit illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the U.S. without fear of deportation.

The two initiatives, most important to many immigrants, include expanded DACA and DAPA:

  • Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program to people of any current age who entered the United States before the age of 16 and lived in the United States continuously since January 1, 2010, and extending the period of DACA and work authorization from two years to three years.
  • Allowing parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, in a new Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.

Due to a federal court order initiated from the state of Texas from February 16, 2015, USCIS was not able to accept requests for the expansion of DACA on February 18, 2015 as originally planned and suspended implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). The court’s temporary injunction, issued February 16, did not affect the existing DACA. Individuals could continue with requesting an initial grant of DACA or renewal of DACA under the original guidelines.

The federal court order litigation escalated to the Supreme Court. On April 18, 2016, the Supreme Court heard oral arguments in United States v. Texas. There are only eight justices, normally nine, currently on the bench after Justice Alito Scalia’s February 2016 passing. If there is a tie of 4-4 at the Supreme Court, then the case will be sent back to the 5th Circuit, which will maintain the unfavorable ruling for immigrants.  It is believed Justice Scalia’s death will not affect the decision as he would have ruled against it anyway.

It is thought that since the case has a mixture of issues not only immigration law but also on legal points of standing and executive power, that the case might be favorable to the Administration and immigrants with a 5-3 holding and possibly a narrow decision on use of executive power. Listening to the justices during the oral argument, it didn’t seem like they believed that Texas would be so inconvenienced by issuing driver’s licenses to all people who are approved DAPA and expanded DACA as an undue burden. This was the main reason Texas said it contested the President’s actions.  One concern is that one state can’t just challenge the President’s executive power when they want to and put the process on hold. Another concern is that the President’s executive powers not to be broadened more than allowed in the Constitution.

The results of the Supreme Court case should be released by mid to late June 2016. According to recent history, USCIS normally takes about 60 days or so to implement new programs. For example, the initial DACA was announced June 15, 2012 and started August 15, 2012. At an April 2016 American Immigration Lawyers Association conference in Washington, D.C., USCIS officials stated they couldn’t plan for DAPA and expanded DACA but they could think about it. They also stated it normally takes USCIS about 6 months to locate, hire, and train personnel. These announcements were not what immigration attorneys wanted to hear due to the limited time available before the next President takes office.

Considering we might learn the Supreme Court ruling in mid-June and wait until mid-August for implementation, we are very close to an unpredictable November election putting in place a new President by January 2017. The rest of 2016 will be very interesting as timing is crucial and we have already waited a year and a half since the President’s November 2014 announcement.

For many interested in applying if DAPA or expanded DACA were to be approved, they should collect evidence of residence since 2010, proof of their children’s birth certificates and/or statuses (for DAPA), and their criminal and immigration history if they have any.  As potentially 3.7 million are awaiting the results, it would be best not to wait until the last minute to collect items that can sometimes take weeks or months to obtain.

For more information:

American Council on Immigration

USCIS on Executive Action

The Importance of Hiring an Experienced Asylum Attorney

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Powers Law Group, P.C.

May 10, 2016

By Texas Board Certified Immigration Attorney Ruby L. Powers

When applying for asylum it is important to have an experienced immigration attorney guide the applicant through the process. The asylum process can be very confusing and intimidating to an individual who is not familiar with US law and has never navigated through the system. Because asylum has such important implications regarding the health and safety of individuals who cannot return to their country due to threats of bodily harm and death, it is imperative an attorney is available to guide them through the process for the following reasons:

  • An experienced attorney knows how to best present the individual’s claim for asylum. The attorney knows the officer’s expectation and he or she will know the best way to approach the case.
  • An attorney will be able to spot any weaknesses in the case and can advise on the best way to approach the case to highlight all the strong points in each specific case.
  • The attorney will be able to help with any communication concerns when getting to an asylum interview. The attorney will take the time to prepare the client for what will happen and provide him or her with a clear understanding of the process.


Because asylum is a specialty area of immigration law and not every immigration attorney has experience with asylum. When choosing your attorney and consider the following criteria:

  • The attorney’s reputation and standing with them State and immigration bar
  • How much experience with asylum (affirmative and defensive/court) the attorney and their firm has
  • Whether the attorney has experience with your country and/or your particular social group


Remember that is very dangerous to choose and attorney based solely on legal fee. We have often seen people mislead about their expectations of service with other attorneys. When a fee is presented also ask if that includes interview attendance and interview preparation. Be cautious of whom you hire and remember to consider the attorney’s experience and reputation in conjunction with expected legal fees.

At Powers Law Group, P.C. we have more than 8 years of affirmative and defensive asylum experience representing clients from countries such as Venezuela, Pakistan, Iraq, Nepal, Rwanda, Syria, El Salvador, Zimbabwe and Nigeria to name a few. Many clients hire us from the states that have interviews in the Houston and the new, New Orleans, Asylum offices. We can represent clients remotely via email, phone, mail and Skype. We have staff that speak English, Spanish, French, Swahili, Kinyarwanda, Vietnamese, and Russian.

To learn more about Asylum review our website at:

STEM OPT regulation will take effect on May 10, 2016

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STEM OPT regulation will take effect on May 10, 2016

May 10, 2016 is the date the new STEM OPT regulation takes effect. The new STEM OPT rule allows  F-1 students with degrees in approved STEM (science, technology, engineering and math) fields to extend their Optional Practical Training for an additional 24 months (instead of the current 17-month extension) beyond the initial one-year OPT period. Students may be eligible for one additional STEM extension if they obtain a second U.S. STEM degree at a higher level. The regulation also imposes several new reporting requirements and other obligations on students, designated school officers and employers, including a formal training plan signed by the employer and student.

Eligibility for the STEM OPT Extension

To qualify for the 24-month extension, you must:

  • Have been granted OPT and currently be in a valid period of OPT;
  • Have earned a bachelor’s, master’s, or doctoral degree from a school that is accredited by a U.S. Department of Education-recognized accrediting agency and is certified by the Student and Exchange Visitor Program (SEVP) when you submit your STEM OPT extension application.
    • Previously obtained STEM degrees: If you are an F-1 student participating in a 12-month period of post-completion OPT based on a non-STEM degree, you may be eligible to use a prior STEM degree earned from a U.S. institution of higher education to apply for a STEM OPT extension. You must have received both degrees from currently accredited and SEVP-certified institutions, and cannot have already received a STEM OPT extension based on this prior degree. The practical training opportunity also must be directly related to the previously obtained STEM degree.
      • For example: If you are currently participating in OPT based on a master’s degree in business administration but you previously received a bachelor’s degree in mathematics, you may be able to apply for a STEM OPT extension based on your bachelor’s degree as long as it is from an accredited U.S. college or university and the OPT employment opportunity is directly related to your bachelor’s degree in mathematics.
    • STEM degrees you obtain in the future: If you enroll in a new academic program in the future and earn another qualifying STEM degree at a higher educational level, you may be eligible for one additional 24-month STEM OPT extension.
      • For example: If you receive a 24-month STEM OPT extension based on your bachelor’s degree in engineering and you later earn a master’s degree in engineering, you may apply for an additional 24-month STEM OPT extension based on your master’s degree.
  • Work for an employer who meets all the requirements listed below in the STEM OPT Employer Responsibilities section.
  • Submit the Form I-765, Application for Employment Authorization up to 90 days before your current OPT employment authorization expires, and within 60 days of the date your designated school official (DSO) enters the recommendation for OPT into your Student and Exchange Visitor Information System (SEVIS) record.

Additional information on the new OPT STEM Extension Rule

  • F-1 employees currently on the 17-month STEM OPT extension are eligible to apply for the additional seven months (for a total of 24 months) if they have at least 150 days remaining on their STEM extension at the time of filing. These applications can only be submitted between May 10 and Aug. 8, 2016;
  • After May 10, USCIS will consider and grant only 24-month STEM extensions. Students who applied for a 17-month STEM extension before May 10 where USCIS does not make a determination by that date will receive a request for evidence to convert to a 24-month STEM extension. The rule does not apply to individuals with a 17-month STEM OPT expiring prior to Oct. 8.
  • Students currently on OPT related to a non-STEM degree may apply for their STEM extension based on a previously earned U.S. STEM degree from a qualifying U.S. institution in the last 10 years as long as the training is directly related to the prior STEM degree.
  • Employers must sign the training plan and certify the conditions of employment and non-displacement of U.S. workers. Termination of the F-1 employee’s employment must be reported to the designated school officer within five business days.
  • Students must submit a self-evaluation signed by their employer every 12 months and reconfirm their participation with their designated school officer every six months. Failure to do so could result in a student having their record terminated by the Department of Homeland Security.
  • DHS has authority to conduct site visits at the place of employment.


For more information click :


Written by Claudine Umuhire Gasana, Esq.

H-1B CAP is reached? What now?

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It is that time a year where employers and foreign professionals are wondering what to do after USCIS has announced to have reached the quota of H-1B visas per fiscal year. This article discusses other options available to skilled foreign workers and U.S. employers who do not want to lose their skills.

On April 7, 2016 U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

What other options are there?

H-1Bs that are not counted against the CAP:

The CAP only applies to new H-1B petitions. A person is not counted against the CAP if they have already been counted against the CAP within the past six (6) years. This means that the same person can apply for H-1B with a new employer and will not be counted against the CAP.

There is also a category of H-1B petitioners who are Cap-exempt. This category includes J-1 physicians who have obtained a waiver pursuant to the State 30 program or federal program. It also includes beneficiaries of employment offers at institutions of higher education, and petitioners who are a non-profit affiliated or related to an institution of higher education.

L-1 Intracompany Transferee Visa:

This type of visa allows companies with offices both in U.S. and foreign countries to transfer foreign employee to temporary work in the U.S. in executive, managerial, or specialized knowledge positions. There are no annual limits for this type of visas.

TN Visas:

This visa category allows Canadian and Mexican citizens to temporarily enter in the U.S. work in a professional position or a Business Consultant position.

E 1/E-2- Trade or Investor Visa:

This category allows citizens of foreign countries that have a treaty commerce and navigation, or a bilateral investment treaty providing for non-immigrant entries with the U.S.

E-3 Visa
The E-3 visa classification is limited to Australian Professionals. The E-3 visa is a “specialty occupation” visa similar to the H-1B visa. Therefore to be eligible for the visa, the Australian citizen must possess a bachelor’s degree or higher (or its equivalent) in the specialty and the specialty occupation must require the degree. There is a 10,500 annual limit on the E-3 visa.

O-1 Visa:

The O-1 classification is suited for individuals of extraordinary ability or achievement. O-1 beneficiaries in the sciences, arts, education, business, or athletics must have extraordinary ability “demonstrated by sustained national or international acclaim.” There is no annual limit for this classification.

OPT-STEM Extension:

Students who hold F-1 status and are completing their Optional Practical Training (OPT) can extend their training period for up to 17 months, if their field of study in Science, Technology, Engineering and Mathematics. The students must work for an employer who is registered for E-verify and must be enrolled in a major included in the STEM program list.

B-1 in lieu of H-1B:

This classification allows employee of a foreign company to enter in the U.S. to work temporarily for a short time for the affiliate U.S. Company. The foreign employee must occupy a professional occupation (which requires at least the attainment of a Bachelor’s degree). Also, the foreign employee can only be paid by the foreign company and must comply with other B-1/B-2 requirements.

J-1 Trainee Visa

This classification allows exchange visitor who has a foreign degree or a professional certificate and at least one year of prior related experience to obtain training for up to 18 months with a U.S. company.

H-3 Visa

This classification allows a temporary worker invited by an organization to receive instruction and training in any field of endeavor that is not designated primarily to provide productive employment.

Some of the classifications explained above only offer temporary work/trainee status for a short period of time and may entail some restrictions with regards to change of status to another classification. One should consult with an immigration attorney to better lay out a strategy suitable for one’s specific situation.

Finally, there is always an opportunity to apply for H-1B status when the next fiscal year opens and new H-1B CAP slots become available.

Author: Claudine Umuhire Gasana, Associate Attorney at the Powers Law Group, P.C.

Disclaimer: The content of this article is provided for informational purposes only and it is not intended to provide or be taken as a legal advice.

Powers Law Group’s Experience with Waivers

Posted on by Ruby Powers in Immigration Law Leave a comment

By Board Certified Immigration Attorney Ruby L. Powers

In 2008, when I became a licensed attorney, I worked for a firm that did almost 100% waivers. I started my immigration law firm in 2009 and a large percentage of the firm’s business is family-based immigration, focusing on consular processing and waivers. We have an impressive approval rate. Here are some highlights:

  • Out of nearly a hundred of our provisional waivers since March 2013, only 2 were denied and upon opportunity to refile one of them, it was approved.
  • In just the last year, 22 of our waiver clients have become legal permanent residents so far.
  • We have successfully completed waivers for clients from the following countries: Mexico, Philippines, El Salvador, Honduras, India, Nigeria, Lebanon, etc
  • We have had a same-sex provisional waiver approved and approved at the consulate.
  • We have worked with varied and difficult fact patterns and have been successful in establishing hardship for our clients.
  • We have staff specifically dedicated to waivers and have created a database of shared knowledge and the combined experience that helps us navigate a variety of waivers.
  • Because of technology, we are able to accommodate people who live in other states and other countries to help them through their waiver petitions. In many cases, we never meet our clients in person. But, we can also help those that are more traditional in their means of communication including those without internet or computers.
  • Many of our attorneys and our staff speak Spanish and therefore can assist many people without having to work against a language barrier. In fact, we have at least six languages spoken at our office.

We receive most of our clients from either internet sources due to our great reviews or from happy successful clients who refer their friends.

We caution people not to go to “notaries” or people who merrily “fill out forms.” Even be weary of going to an attorney who doesn’t practice a lot of immigration law as they might not be able to adequately focus on the updates and changes in immigration law and processes to successfully serve your needs.

For example, if the person you trust for your waiver and consular processing doesn’t have enough knowledge and experience, then you could get stuck in your home country or be wasting your time and money on something you don’t qualify for. We have seen this happen over and over from our consultations and cases that eventually hire us to fix a mistake. Not always, can we fix the mistake.

Remember, the end goal for this process is legal permanent residency in which the person can apply for a social security number, develop credit history for economic mobility in the US, apply for a valid driver’s license, have work authorization and ability to travel internationally as well as accrue time toward naturalization or citizenship. Many clients thank us for guiding them through this process as they had been waiting for years to legalize and were afraid to finalize it.

While applying for a waiver may seem intimidating, consulting and retaining an experienced immigration attorney with a vast knowledge and years of experience is essential to having a positive outcome.


E-2 Investor Visa: Overview and Tips

Posted on by Ruby Powers in Immigration Law Leave a comment

By Claudine Umuhire Gasana, Esq. with Powers Law Group, P.C.

April 12, 2016

In the midst of the economy downturn, employees are being laid off among them foreign professionals and managers who have held non-immigrant visas for a long time are now wondering what to do to remain in status in the U.S.

One available and “self- petition” option is the E-2 non-immigrant visa status.

An E-2 investor non-immigrant status is defined as “the investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit.” While this definition might seem intimidating, it is important to remember that essentially the investment must be for the purpose of establishing a new business venture or purchasing a pre-existing business.

Five requirements must be met for an E-2 Investor Visa can be approved.

  1. As a treaty investor, the individual must be coming to the US to invest in a new or existing enterprise– A treaty investor needs to show 50% ownership in a new or established enterprise. A treaty investor must show that he/she is in process of investing or has invested funds in a bona fide enterprise. Most people think that you have to invest the entire capital before applying for the E-2 visa. This is not accurate, you have to show considerable efforts in investing before applying for the E-2 visa and also, show that you possess the rest of the capital is substantial and at risk (unsecured).
  2. The investment must not be marginal: Marginal means that investor must show potential of generating revenues and hiring U.S. workers. The investor must only overcome the presumption that he/she is not establishing an enterprise to solely sponsor his or her visa or pay him/her a salary.
  3. The applicant must be in possession of funds that he or she will invest and the funds must be committed to the business– investor must demonstrate that the capital invested is irrevocably committed to the enterprise and subject to partial or total loss in the event that the entity fails. The funds you invest must also be your own. Donations are acceptable as long as you can provide evidence of total ownership and access to the funds.  Additionally, the invested funds must be substantial in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise you are considering.
  4. The applicant must be able to demonstrate the source of the capital: it is very important to keep track of all the funds transferred in to the new business, keep all receipts and open the business account and use the same account in paying for expenses of the business. Tip: all expenses made (including attorney’s fees, accountant fees) for the purpose of establishing the new business entity count towards the capital invested.
  5. The applicant must be coming to the US to develop and direct the enterprise.

It is important to gather important documentation that can prove the previous points. The following list provides a great starting point for anyone thinking of applying for an E-2 Investor visa.

  • Evidence of possession and control of investment funds: bank records, financial statements, loans, savings, promissory notes.
  • Evidence of remittance of funds to the U.S.: canceled checks, bank drafts, transfers, exchange permits, receipts.
  • Evidence of establishment of business in the U.S.: articles of incorporation, partnership agreements, organization and staffing charts, shares, titles, contracts, receipts licenses, leases.
  • Evidence of investors’ nationality: passports, articles of incorporation of parent company, stock exchange listings.
  • Evidence of investment in the U.S.: titles, receipts, contracts, loans, bank statements.
  • Evidence of the substantiality of the investment: contracts, work orders, financial statements, audits, corporate tax returns.
  • Evidence that the enterprise is not marginal: payroll records, payroll tax forms, personal tax returns or other evidence of personal income and assets.
  • Evidence that the enterprise is a real, operating business: annual reports, catalogs, sales literature, news articles, liability insurance records, permits (inspection permits, etc.).
  • Evidence of the qualifications of the prospective employee: resume, diplomas, certificates.

Additionally, it is imperative to remember that not everyone can apply to an E-2 visa. The countries  found in this list are the only ones approved to apply for an E-2 visa.

Finally, E-2 visa status application can be filed through USCIS California Service Center for a change of status applications or at U.S. Consulate abroad.

Author: Claudine Umuhire Gasana, Esq.

The Expected Expansion of the Provisional Waiver (I-601A)

Posted on by Ruby Powers in citizenship, Consular Processing, Deportation, I-601 Waivers, I-601A Waivers, Immigration Law, Immigration Trends, pathway to citizenship Leave a comment

The Expected Expansion of the Provisional Waiver (I-601A)

By Board Certified Immigration Attorney Ruby L. Powers

November 4, 2015

The Provisional Waiver (I-601A) process currently allows certain people who are present in the United States to request from U.S. Citizenship and Immigration Services (USCIS) a provisional waiver for certain unlawful presence grounds of inadmissibility prior to departing from the United States for consular processing of their immigrant visas—rather than applying for a waiver abroad after the immigrant visa interview using the Form I-601, Waiver of Grounds of Inadmissibility. The Department of Homeland Security (DHS) proposes to expand eligibility for provisional waivers to include aliens in all statutorily eligible immigrant visa categories, including family-sponsored immigrants, employment-based immigrants, certain special immigrants, and Diversity Visa program selectees, together with their derivative spouses and children.  It also proposes expanding who may be considered a qualifying relative for purpose of the extreme hardship determination to include legal permanent resident spouses and parents.  This has a far reaching scope and is a refreshing positive change in light of deadlocked reform and executive actions being held in litigation all year.

Before the existing and more limited provisional waiver rule was implemented in March 4, 2013, many families had to be separated for 4 to 18 months to complete a legal permanent residency process via consular processing due to an illegal entry or other grounds of inadmissibility. Before the provisional waiver, clients might have been able to stay in Mexico only 4 months due to the generous pilot program in Cd. Juarez, Mexico or in some cases wait 18 months in Honduras or longer, if an appeal was sought and in other countries there were inconsistent waiting times. Obviously, there were hesitations for families to proceed with this process for legalization.

Then the idea of the Provisional Waiver was formulated as a way to allow certain family members to apply for the waiver in the U.S., and prevent waiting and separation times abroad. The concept was proposed in January 2012 and initially opened for Federal Register comment period on January 9, 2012 and again April 2, 2012. The rule was announced January 3, 2013 and began 60 days later, on March 4, 2013.

After the Provisional Waiver program began, the Law Office of Ruby L. Powers has been able to help countless families gain legal permanent residency for family members who only need to remain out of the country for 2 to 4 weeks, sometimes for less time, to complete their consular processing. From fiscal years 2013 to 2015, 74,439 waivers were filed and of those 44,198 waivers were approved and 18,773 waivers were denied.  It was such a success that the DHS would like to expand it to people in all statutorily eligible immigrant visa categories and expand the qualifying member for the waiver to spouses and citizens of legal permanent residents as well.

On November 20, 2014, DHS Secretary Jeh Johnson issued a memorandum, “Expansion of the Provisional Waiver Program,” directing U.S. Citizenship and Immigration Services (USCIS) to amend its regulations to expand access to the provisional waiver program, to provide additional guidance on the definition of “extreme hardship,” and to “consider criteria by which a presumption of extreme hardship may be determined to exist.”

Currently DHS is proposing to expand eligibility for provisional waivers to include as qualifying relatives, who can establish extreme hardship, an LPR spouse or parent, not just to U.S. citizen spouses or parents, as it currently stands.  This would be in the interests of encouraging eligible aliens to complete the visa process abroad, promoting family unity, and improving administrative efficiency. The expansion of the provisional waiver program would be a welcome change. The hardships suffered by preference category families, who face the same lengthy separation from loved ones when they seek legal permanent resident status, are as equally compelling as those suffered by immediate relatives. Opening up the provisional waiver process to these individuals will offer more measurable benefits to USCIS and DOS, will further facilitate legal immigration by encouraging a more sizable group to come out of the shadows, and comports with USCIS’s goal of alleviating unnecessary familial hardships.                 On July 22, 2015, the Federal Register opened a 60-day public comment period on the expansion of the provisional waiver which ended September 21, 2015. As we see, the previous provisional waiver had two comment periods and took a year of discussion that was noted to the public. In this case, the expansion was noted nearly a year ago on November 20, 2014 and we greatly hope the rule will be in place in early 2016.

Additionally, the new rule may have a more concise definition of extreme hardship, the standard one must meet for a successful provisional waiver.  This will allow legal practitioners to save their clients time and money by telling them what specific type of evidence is required to prove extreme hardship and accordingly streamline the process and shorten the processing times for cases filed meeting the new guidelines. Currently there are only a few cases that hold guidance and a large room for discretion which can cause varying results in the applications and outcomes.

If you may know someone who could benefit from this expanded provisional waiver, although it is not a rule yet, it is helpful to have a consultation with a qualified immigration attorney.  Ideally, learn if the attorney and their firm have extensive experience with waivers. It is important to plan in advance in case freedom of information act requests, FBI background checks, and collection of other documents are necessary. Additionally, in many cases certain processes would need to be started with requisite wait times before the waiver process may begin. In some cases, preparation, research and strategy take time. Once this rule is in effect, many people will be searching for help to see how it could benefit them.

Furthermore, we would like to warn you and others about the use of people who practice law without a license. In Texas, people often called ‘notarios’ frequently persuade people needing immigration legal services that the process is simple and an attorney is not needed. In the process, they are acting illegally by providing legal advice without a license and many times put people in difficult situations that are hard to correct.

The Law Office of Ruby L. Powers has had continued success with waiver and provisional waivers reuniting families from many countries.   I regularly speak locally and nationwide on the topic of waivers and am regularly consulted by other attorneys on problem cases. We have a team with many years of immigration, consular processing, and waiver experience specific to this article’s topic. We pride ourselves in quality service and helping guide clients through the arduous process to a reunification, peace of mind, greater financial and emotional stability and an improved life in the United States.