Author Archives: Coleman Jackson

IRS Cautions Taxpayers About Fake Charities and Scammers Targeting Immigrants

By Coleman Jackson, Attorney & Counselor and CPA
August 01, 2021

IRS Cautions Taxpayers About Fake Charities and Scammers Targeting Immigrants
The IRS continues to observe criminals using a variety of scams that target honest taxpayers. In some cases, these scams will trick taxpayers into doing something illegal or that ultimately causes them financial harm. In this blog we will discuss about Fake Charities and Immigrant Fraud which are part of the “Dirty Dozen” of tax scams list in 2021.


Fake charities

Fake charities

Taxpayers should be on the lookout for scammers who set up fake organizations to take advantage of the public’s generosity. Scammers take advantage of tragedies and disasters.

Scams requesting donations for disaster relief efforts are especially common over the phone. Taxpayers should always check out a charity before they donate, and they should not feel pressured to give immediately.

Taxpayers who give money or goods to a charity may be able to claim a deduction on their federal tax return by reducing the amount of their taxable income. However, to receive a deduction, taxpayers must donate to a qualified charity. To check the status of a charity, they can use the IRS Tax Exempt Organization Search tool. It’s also important for taxpayers to remember that they can’t deduct gifts to individuals or to political organizations and candidates.

Here are some tips to help taxpayer avoid fake charity scams:

  • Individuals should never let any caller pressure them. A legitimate charity will be happy to get a donation at any time, so there’s no rush. Donors are encouraged to take time to do their own research.
  • Confirm the charity is real. Potential donors should ask the fundraiser for the charity’s exact name, website and mailing address, so they can confirm it later. Some dishonest telemarketers use names that sound like well-known charities to confuse people.
  • Be careful about how a donation is made. Taxpayers shouldn’t work with charities that ask for donations by giving numbers from a gift card or by wiring money. That’s a scam. It’s safest to pay by credit card or check – and only after researching the charity.


Immigrant fraud

Immigrant fraud

IRS impersonators and other scammers often use threats and intimidation to target groups with limited English proficiency.

The IRS phone impersonation scam remains a common scam. This is where a taxpayer receives a phone call threatening jail time, deportation or revocation of a driver’s license from someone claiming to be with the IRS. Recent immigrants often are the most vulnerable. People need to ignore these threats and not engage the scammers.

A taxpayer’s first contact with the IRS will usually be through mail, not over the phone. Legitimate IRS employees will not threaten to revoke licenses or have a person deported. These are scare tactics.

 

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

Reporting Foreign Bank and Financial Accounts | LEGAL THOUGHTS

Coleman Jackson, P.C. | Transcript of Legal Thoughts Podcast
Published June 14 ,2021

FBAR - Reporting Foreign Bank and Financial Accounts

LISTEN:

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Mayra Torres, Public Relations Associate of Coleman Jackson, P.C.   The topic of discussion is “Reporting Foreign Bank and Financial Accounts“. You can listen to this podcast by clicking here:

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY:  Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY:  Coleman Jackson

Welcome to Tax Thoughts

  • My name is Coleman Jackson, and I am an attorney at Coleman Jackson, P.C., a taxation, government contracts litigation and immigration law firm based in Dallas, Texas.
  • Our topic for today is: “Reporting Foreign Bank and Financial Accounts”.
  • Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant, Reyna Munoz, Immigration Legal Assistant and Mayra Torres, Public Relations Associate.
  • On this “Legal Thoughts” podcast our public relations associate, Mayra Torres will be asking the questions and I will be responding to her questions on this important tax topic: “Reporting Foreign Bank and Financial Accounts.”

Interviewer:  Mayra Torres, Public Relations Associate

  • Good afternoon everyone. My name is Mayra Torres, and I am the public relations associate at Coleman Jackson, P.C.  Coleman Jackson, P.C. is a law firm based right here in Dallas Texas representing clients from around the world in taxation, litigation, and immigration law.
  • Attorney, thank you for joining us today to discuss the laws that require certain individuals, businesses and other entities to timely report Foreign Bank and Financial Accounts. A very important topic anyone with foreign bank accounts and other assets abroad.
  • Question 1:
  • Could you give us a general overview of the legal source of these legal rules obligating certain individuals to disclose their foreign bank, financial accounts, and other offshore asset holdings. I mean what law requires this; who does it apply to and what are the penalties for failing to comply?  These are all questions everyone with foreign assets probably needs the answer to.  So, Attorney could you explain this in terms easy to understand?

Attorney Answers Question 1:

  • Good afternoon Mayra. Yes, I can give a general overview as to what laws impose these requirements foreign bank accounts disclosures, why Congress say they enacted these statutes, who these disclosure rules apply to and what penalties are imposed on those who fail to timely disclose their foreign holdings.
  • Answer No. 1:
  • The Bank Secrecy Act (BSA) was enacted into law in 1970. The Bank Secrecy Act is codified in 31 USC Sections 5311 et seq.  The law authorizes the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCen) to administer and enforce the law.  The BSA gives FinCen authority to collect information from a U.S. person who have financial interests in or signatory   authority over foreign bank and financial accounts.   The BSA also gives FinCen numerous powers to enforce the law as it relates to financial institutions as well; but that is beyond the scope of this particular podcast.  I am only going to talk about the application of the law to certain U.S. persons as defined in the BSA.
  • The Report of Foreign Bank and Financial Accounts (FBAR), which is FinCen Form 114 required to be filed by April 15th annually to report certain foreign bank and financial holdings by U.S. persons. A timely FBAR is required because foreign financial institutions may not be subject to the same reporting requirements as domestic financial institutions. The FBAR is also a tool used by the United States government to identify persons who may be using foreign financial accounts to circumvent United States law. Information contained in FBARs can be used to identify or trace funds used for illicit purposes or to identify unreported income maintained or generated abroad.  So, this explains what Congress is getting at in terms of certain U.S. persons.  The law is designed to detect tax fraud, money laundering, and other nefarious financial criminal activity.
  • In April 2003, the Financial Crimes and Enforcement Network (FinCEN) delegated enforcement authority regarding the FBAR to the Internal Revenue Service (IRS). The IRS is now responsible for:
  • Investigating possible civil violations;
  • Assessing and collecting civil penalties; and
  • Issuing administrative rulings.
  • But let’s it be clear, Form 114, the annual FBAR filed with FinCen not the Internal Revenue Service. The April 2003 delegation of enforcement authority to the IRS had absolutely no impact on who must file an FBAR (Form 114), or where the Form 114 must be filed or when the FBAR is required to be filed.  FBAR disclosure are filed on FinCen’s website.

Interviewer:  Mayra Torres, Public Relations Associate

Question 2:

Attorney it is abundantly clear why disclosing foreign bank accounts and other offshore assets and financial holdings annually in an FBAR is so important.

Please explain in more detail exactly who is required to file the FBAR?

Attorney Answers Question 2:

  • Under the Bank Secrecy Act, a United States person must file an FBAR under certain conditions that I will explain in a minute. U.S. person is defined in the BSA as: a citizen of the United States, a resident of the U.S.,  Business structured under the laws of any state or territory of the United States; such as, a corporation, partnership, limited liability company, trust and estate.  A U.S. person must file an FBAR with the Financial Crimes Network on FinCen Form 114 to report:
  • a financial interest in or signatory or other authority over one or more financial accounts located outside the United States if
  • the aggregate value of those foreign financial accounts exceeded $10,000 at any time during the calendar year reported.
  • Generally, an account at a financial institution located outside the United States is a foreign financial account. Whether the account produced taxable income has no effect on whether the account is a “foreign financial account” for FBAR purposes. But you don’t need to report foreign financial accounts that are:
  • Correspondent/Nostro accounts,
  • Owned by a governmental entity,
  • Owned by an international financial institution,
  • Maintained on a United States military banking facility,
  • Held in an individual retirement account (IRA) you own or are beneficiary of,
  • Held in a retirement plan of which you’re a participant or beneficiary, or
  • Part of a trust of which you’re a beneficiary, if a U.S. person (trust, trustee of the trust or agent of the trust) files an FBAR reporting these accounts.
  • You don’t need to file an FBAR for the calendar year if:
  • None of your foreign financial accounts, either singularly or combined exceeded $10,000 at any time during the calendar year reported.
  • All your foreign financial accounts are reported on a timely filed consolidated FBAR.
  • All your foreign financial accounts are jointly-owned with your spouse and your spouse and you authorized your spouse to file the jointly held accounts on a timely filed Form 114 by executing Form 114a.  If you own separate foreign accounts, you must file a timely Form 114.

Interviewer:  Mayra Torres, Public Relations Associate

  • I see, so if a taxpayer has foreign financial accounts and the aggregate maximum value exceed $10,000 at any time during the calendar year then they must file Form 114 with the Financial Crimes Network.
  • Question 3:
  • Attorney, what is the due date for filing Form 114 with the Financial Crimes Network to report foreign bank account holdings?

Attorney Answers Question 3:

  • Mayra, that is an excellent question because there are potential grave civil fines and potential criminal consequences for U.S. persons who fail to timely file Form 114 with the Financial Crimes Network. The FBAR is an annual report filed on FinCen Form 114.  The FBAR is due April 15th following the calendar year reported.
  • Taxpayers are allowed an automatic extension to October 15th if they fail to meet the FBAR annual due date of April 15th. You don’t need to request an extension to file the FBAR by October 15th. The October 15th  extension is automatic.
  • If you are affected by a natural disaster, the government may further extend your FBAR due date. It’s important that you review relevant for complete information.
  • If a filer does not have all the available information to file the return by the automatic extension date of October 15th, the filer should file as complete a return as possible and amend the report when additional or new information becomes available.

Interviewer:  Mayra Torres, Public Relations Associate

Question 4:

Attorney, what could happen to a taxpayer who fails to file their required FBAR by the extended filing deadline of October 15th?

Attorney Answers Question 4:

  • If a required FBAR is not filed by the appropriate date the U.S. Person in violation of the Bank Secrecy Act may be subject to civil monetary penalties and/or criminal penalties, or both, for FBAR reporting and/or recordkeeping violations. The exact penalty imposed will depend on all the facts and circumstances of each case. The current maximum penalties for failing to file required FBARs or delinquent FBARs are as follows:
  • For Non-Willful Violations: U.S. persons who inadvertently violate the law are subject to civil penalties up to a maximum of $12,921 for each negligent violation. The 9th Circuit Court of Appeals ruled earlier this year that 31 U.S.C. Section 5341 permits the IRS to impose only one non-willful penalty when an untimely FBAR is filed, no matter the number of foreign bank accounts are held by the taxpayer; but this issue is not settled in all the Circuits.  I don’t think the 5th Circuit Court; which is the Circuit Court of Appeals with federal court jurisdiction over Texas; have not as far as I know addressed this issue as to whether the delinquent FBAR penalty can be imposed based on the number of unreported accounts or whether it is to be imposed on each untimely Form 114.  Taxpayer’s need to understand that the IRS takes a very aggressive posture when imposing the penalties authorized under the Bank Secrecy Act.  I am merely warning U.S. persons with unreported foreign accounts.  The penalties for violations of the Bank Secrecy Act are very severe and are aggressively pursued by the IRS.  The courts tend to decide matters regarding whether the taxpayer acted non-willfully or willfully in kind of mechanical manner; in the sense that, the annual tax return specifically asks the question as to whether the taxpayer owns, has signatory authority over or control foreign accounts.  That question on the Form 1040 tax return must be answered yes or no.  The Form 1040 tax return instructions cautions the taxpayer to consult the form’s instructions before answering the question.  With that said, let’s talk about penalties for willful violations of the Bank Secrecy Act because proving that a taxpayer’s actions were inadvertent or non-willful can be challenging.
  • For Willful Violations: U.S. persons who fail to file Form 114 or fail to retain records of the foreign accounts willfully may be subject to  civil penalties of up to the greater of $129,210, or 50% of the amount in the account at the time of the violation.
  • For a Negligent Violation by Financial Institutions or Non-financial Business or Trade: These types businesses who negligently violate the Bank Security Act’s FBAR requirements may be subject to a negligence civil penalty up to $1,118.  This penalty does not apply to individuals who violates the BSA.
  • For a Pattern of Negligent Activity by a Financial Institution or Non-financial Trade or Business: These types of businesses who engages in a patter of negligent violations of the FBAR rules may be subject to civil penalty for Negligent Violation of $1,078 with respect to any such violation, not more than $86,976. These pattern of negligent activity penalties does not apply to individuals; they apply to businesses.
  • These penalties will be applied if an FBAR is filed late or not at all. If the taxpayer has not been contacted by the IRS about the late FBAR and are not under investigation by the IRS, they may file a late FBAR. To keep penalties to a minimum, this should be done as soon as possible.
  • When filing a late FBAR, it gives the option to provide further explanation of the late filing or indicate whether the filing is made in conjunction with an IRS compliance program. If the foreign financial account is properly reported the late-filed FBAR, and the IRS determines that the FBAR violation was due to reasonable cause, no penalty will be imposed.
  • Taxpayers can be audited by the IRS. Taxpayer’s can file Form 2848, Power of Attorney and Declaration of Representative to authorize a lawyer or other professional to represent them in delinquent FBAR matters and IRS investigations regarding foreign bank accounts and foreign assets and unreported earnings.  Sometimes the IRS discover FBAR issues during routine audit examinations of the taxpayer’s tax returns.  Sometimes delinquent FBARs are discovered during BSA/ Anti-money laundering examinations, counter-terrorist investigations and during informal and formal financial crimes enforcement actions by the Financial Crimes Network and the Office of Foreign Assets Control.  Further, banks must also make regular Suspicious Activity Reports under the Bank Secrecy Act.   So as you can see there are a lot federal agencies involved with enforcement of the Bank Secrecy Act and there are numerous ways the United States government can learn about taxpayer’s foreign accounts.  There are potentially substantial civil penalties that could be assessed against non-compliant taxpayers with unreported foreign accounts and even potentially criminal exposure for FBAR violators.

Interviewer:  Mayra Torres, Public Relations Associate

  • Wow, Attorney, hearing about all those penalties; it is obvious that the IRS and other law enforcement agencies of the U.S. government has a lot of power to enforce these rules against people who don’t follow the Bank Secrecy Act exactly right! The government doesn’t take this matter lightly. It is very important for FBARs to be filed accurately and by the appropriate due date.
  • Question No. 5
  • So Attorney, explain how and where does a taxpayer file an FBAR?

Attorney Answers Question 5:

  • An FBAR must be filed electronically through the Financial Crimes Enforcement Network’s (FinCen) BSA E-Filling System . You access FinCen’s BSA E-Filing Web Portal by going to fincen.treas.gov.
  • I mentioned this fact once before during this presentation; but let me say it again; FBARs are not filed with the taxpayer’s annual tax return. Form 114 is used to file FBARs.  Form 114 is not a tax form.
  • If the taxpayer desires to file Form 114 in paper format, the taxpayer must call FinCEN’s Regulatory Helpline at 800-949-2732 to request an exemption from e-filing. If FinCEN approves the request, FinCEN will send the paper FBAR form to complete and mail to the IRS at the address in the form’s instructions. FinCen will not accept paper-filings on TD F 90-22.1, which is obsolete and was replaced by Form 114 several years ago now) or a printed FinCEN Form 114, which is currently used for e-filing only.
  • If the taxpayer would prefer to have someone else file their FBAR on their behalf, they must sign a Record of Authorization to Electronically File FBARs, to authorize that individual or law firm to electronically file Form 114 on their behalf. FinCEN Report 114a; which I mentioned a while back in this discussion when I was talking about joint-holders of foreign accounts, are not filed with FinCen. Form 114a is for recordkeeping purposes only.  The joint-account holders must present this form for examination in the event FinCEN or IRS ask for it.
  • I would like to note that the law requires that these records be kept for five years from the due date of the FBAR.
  • Records must be kept for each foreign account that are required to be included on Form 114. The records must establish the name on the account, the account number, name and address of the foreign bank, type of account, and maximum value during the year. The Bank Secrecy Act does not precisely mandate the type of document that must be kept by the taxpayer.  It could possibly be bank statements or a copy of the filed FBAR.  Whatever document the taxpayer use to substantiate this required information, must be kept for five years after the due date of the FBAR.
  • In the case of an officer or employee who files an FBAR to report signatory authority over their employer’s foreign financial accounts; the employee is not required to personally keep records on these accounts. But their employer must keep the required records for these foreign accounts.

Mayra Torres’s Concluding Remarks:

  • Attorney thank you very much for this very comprehensive and informative presentation on the topic:  “Reporting Foreign Bank and Financial Accounts.”
  • Our listeners who want to hear more podcast like this one should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever they listen to their podcast. You can follow our blogs by going to our law firm’s website at cjacksonlaw.com.  Everybody take care for now!  Come back in about two weeks, for more taxation, government contract litigation and immigration Legal Thoughts from Coleman Jackson, P.C., which is located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620, Dallas, Texas 75206.
  • English callers: 214-599-0431; Spanish callers:  214-599-0432 and Portuguese callers:  214-272-3100.

Attorney’s Concluding Remarks:

THIS IS THE END OF “LEGAL THOUGHTS” FOR NOW

  • Thanks for giving us the opportunity to inform you about the “Reporting Foreign Bank and Financial Accounts”.
  • If you want to see or hear more taxation, government contracts litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tune!  Watch for a new Legal Thoughts podcast in about two weeks and check our law firm’s website at www. cjacksonlaw.com to follow our blogs.  We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, litigation and immigration.  Until next time, take care.

Cash Intensive Businesses Need Good Internal Controls to Substantiate Business Activity

By Coleman Jackson, Attorney & Counselor and CPA
July 17, 2021

Cash Intensive Businesses Need Good Internal Controls to Substantiate Business Activity

Operating a business enterprise with cash can be an IRS audit flag because businesses operating in cash are susceptible to fraudulent financial transactions.  However certain business operations handle a lot of cash in their normal operations.  These businesses are classified in tax parlance as cash intensive businesses.  Convenience stores, donut shops, massage parlors, hair stylist, mini-marts, bodegas, coin operated amusements venues; such as video games, pinball machines, jukeboxes, pool tables, slot machines and other gaming machines to only name a few classic cash intensive businesses.  All of these types of businesses can legitimately operate with a high incident of cash transactions.  So, there is absolutely no badge or indicia of fraud exist in most of these cash intensive businesses.  Marijuana operators are another example of perhaps legitimate businesses operating in cash.  Where the marijuana operators being legal, they must operate in cash because the use, sell and distribution of marijuana is illegal under federal drug enforcement laws even though several states have legalized this drug for medicinal as well as entertaining purposes in some cases.  Since it is illegal under federal law to sell or distribute marijuana, those enterprises that sell and distribute marijuana cannot use the normal banking system.  And certain laundry facilities also are coin operated businesses.  They too are legitimately cash intensive businesses.  All of these cash intensive businesses have one thing in common, cash is fungible and hard to trace.  Therefore, when the IRS examiner comes to audit their books and records, it can be a challenging experience for the auditor and extremely frightening to the cash intensive business owner.

 

Cash Intensive Businesses Need Good Internal Controls to Substantiate Business Activity

It is not lost on the State of Texas and IRS examiner that cash operated businesses can have multiple sets of books and records or no records at all.  And often when they have records, they are poor, incomplete and inaccurate.  The basic issue is proper accounting for transactions during the audit period:  are sales, purchases, and inventory properly and timely accounted for where the operator and the auditor can timely and accurate compute taxes owed and the operator can submit the right amount of taxes to the tax authorities?  These questions are proper concerns of any auditor who examines the books and records of any cash intensive business.  Personal expenses paid out of the cash of the business.  Business expenses paid with cash from receipts without any records.  Personal use of items purchased.  Physical inventories none existent or sporadic which leads to missing, stolen or unaccountable purchased items.  Cash sales recorded on paper or separate ledgers completely separate and distinct from credit card sales registers or any register tape at all.  Multiple employees using the same cash drawers without any accountability or cash reports or registry procedures or system of control.  Now these things could be done intentionally, but, quite often they are done unintentionally.  Many immigrants work in cash intensive businesses and many come to the United States where different cultural and business norms apply with regards to operation of a business enterprise.  They are not familiar with the requirements to keep timely and accurate business records for Texas limited sales, use and excise tax purposes and federal income tax purposes.  Many immigrants are surprised and afraid when the Texas or Federal tax examiner knocks on their door.  Good internal controls can serve the auditor well and lessen the fear of the business owner.

Cash Intensive Businesses Need Good Internal Controls to Substantiate Business Activity

Internal Controls is an accounting process.  It is a very important process in any business to account for the receipts of money, disbursement of money and account for the inventory and property of the business.  Cash intensive businesses should implement strong internal controls because cash is fungible.  Internal controls are the process or systems in place to ensure the efficient and effective capturing of critical data to ensure that the business can run with accountably to its owners and consistent with the owners’ objectives;  produce reliable and accurate financial summaries for management purposes and pursuant to outside obligations; and reports and comply with applicable laws, regulations and ordinances.  In order for a business to have effective internal control requires that the job duties of employees who collect the money, record the money and review the money reports are adequately separated.  Internal controls require documentation, documentation and more documentation.  And this is critical for cash intensive businesses because under the Texas Tax Code all businesses must keep accurate contemporaneous books and records.  The Internal Revenue Code requires the same for federal tax purposes; and it also requires taxpayers to substantiate its receipts and deductions upon IRS examination.  Cash intensive business owners will do well to review their internal controls prior to a visit by auditors from either the Texas Comptroller of Public Accounts or the Internal Revenue Service to ensure that they are in compliance with all applicable tax laws.

 

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432 | Portuguese (214) 272-3100

Choice of Entity and Public Contracting

By: Coleman Jackson, Attorney and Certified Public Accountant
July 01, 2021

Choice of Entity and Public Contracting

As you set out to begin your next public contract, one of your first tasks will be to evaluate the choices in structuring your business.   Entity selection is important, as each type of entity carries its own set of legal and tax attributes. Before you consult with your CPA firm and legal counsel, you will need to give some thought to the following questions:

  • How many owners will we have?
  • Who will our owners be?
  • What type of potential liability will exist for the ownership team?
  • How will the business be financed?
  • How do we want our business profits to be taxed?
  • What is our exit strategy?

These are just a few of the questions that should be addressed before you begin to acquire startup capital, initial loan funding or seek teaming opportunities. Choosing the right entity structure for your construction company, for example, depends on many aspects and factors of your business. One of the main concerns for any business is personal liability. Although no entity structure can guarantee exemption from all liabilities, there are ways to protect yourself and your business, based on your company’s needs. In other words, your business structure affects how much you pay in taxes, your ability to raise money, the paperwork you need to file, and your personal liability.

Choice of Entity and Public Contracting

You’ll need to choose a business structure before you register your business with the state. Most businesses will also need to get a tax ID number and file for the appropriate licenses and permits.

Choose carefully. While you may convert to a different business structure in the future, there may be restrictions based on your location. This could also result in tax consequences and unintended dissolution, among other complications.

Consulting with business counselors, attorneys, and accountants can prove helpful.

Generally, there are five main entity types: sole proprietorships, limited liability companies (LLCs), partnerships, S corporations, and C corporations. The most common of these for construction contractors are LLCs, partnerships, S corporations, and C corporations. Below are brief descriptions of these four main types as well as some advantages and disadvantages of each.

Partnerships

In order to have a partnership, you must have more than one owner.  Unlike proprietorships, they are separate legal entities apart from their owners.  There is no tax rate schedule for partnerships, as they typically do not pay any tax at the entity level, and in a general partnership the income or loss is passed through to the owners on a Schedule K-1.  Each general partner has responsibility for the debts of the partnership.  Of course you may have both general and limited partnership interests.

Partnerships have a lot of flexibility when it comes to income allocation.  Income or loss allocation does not always follow the ownership of the business, as partnership taxation provides some opportunities for special allocations of income, provided the allocation carries ‘economic substance’ within the terms of the tax code.   Partners overseeing specific divisions, contracts or tasks could be rewarded with specific allocations of their department’s financial performance.

A partnership is a pass-through entity owned by two or more persons. Partnerships offer the ability to grow the company with each partner assuming less risk than they would as the sole owner of the business. However, there is a loss of control for partners in a partnership since all partners must approve each business decision. A few things to consider before electing the partnership status are:

Advantages:

  • Flexibility in ownership structure
  • Collaboration on contracts and moral support from additional owners
  • Increased ability to raise capital
  • No double taxation
  • Reduced financial burden on partners
  • New 20% deduction for qualified business income possible (owner tax return)

Disadvantages:

  • Potential disagreements amongst partners
  • Sharing profits with others
  • Applicability of self-employment tax
  • Taxed on the individual level (potential highest rate = 37%)
  • Lack of limited liability (unless operating as a LLC)

 

C-corporation

A C-corporation is an independent legal entity that exists separately from the company’s owners. Shareholders (the owners), a board of directors, and officers have control over the corporation, although one person in a C-corp can fulfill all of these roles, so it is possible to create a corporation where you’re in charge of everything.

This being said, with this type of business entity, there are many more regulations and tax laws that the company must comply with. Methods for incorporating, fees, and required forms vary by state.

Advantages:

  • Owners (shareholders) don’t have personal liability for the business’s debts and liabilities.
  • C-corporations are eligible for more tax deductions than any other type of business.
  • C-corporation owners pay lower self-employment taxes.
  • You have the ability to offer stock options, which can help you raise money in the future.
  • No restriction on ownership
  • Separate legal entity from owners
  • 2018 flat tax rate of 21%

Disadvantages:

  • Income faces double taxation
  • Tax burden is potentially greater than pass-through entities
  • No personal tax credits
  • More expensive to create than sole proprietorships and partnerships (the filing fees required to incorporate a business range from $100 to $500 based on which state you’re in).
  • C-corporations face double taxation: The company pays taxes on the corporate tax return, and then shareholders pay taxes on dividends on their personal tax returns.
  • Owners cannot deduct business losses on their personal tax returns.
  • There are a lot of formalities that corporations have to meet, such as holding board and shareholder meetings, keeping meeting minutes, and creating by laws.

Most small businesses pass over C-corps when deciding how to structure their business, but they can be a good choice as your business grows and you find yourself needing more legal protections. The biggest benefit of a C-corp is limited liability. If someone sues the business, they are limited to taking business assets to cover the judgment—they can’t come after your home, car, or other personal assets.

This being said, corporations are a mixed bag from a tax perspective — there are more tax deductions and fewer self-employment taxes, but there’s the possibility of double taxation if you plan to offer dividends. Owners who invest profits back into the business as opposed to taking dividends are more likely to benefit under a corporate structure.

S-corporation

An S-corporation preserves the limited liability that comes with a C-corporation but is a pass-through entity for tax purposes. This means that, similar to a sole prop or partnership, an S-corp’s profits and losses pass through to the owners’ personal tax returns. There’s no corporate-level taxation for an S-corp.

Advantages:

  • Owners (shareholders) don’t have personal liability for the business’s debts and liabilities.
  • No corporate taxation and no double taxation: An S-corp is a pass-through entity, so the government taxes it much like a sole proprietorship or partnership.
  • Limited liability
  • No double taxation
  • New 20% deduction for qualified business income possible (owner tax return)

Disadvantages:

  • Like C-corporations, S-corporations are more expensive to create than both sole proprietorships and partnerships (requires registration with the state).
  • There are more limits on issuing stock with S-corps vs. C-corps.
  • Taxed on the individual level (potential highest rate = 37%)
  • Limits long-term growth plan

You still need to comply with corporate formalities, like creating bylaws and holding board and shareholder meetings.

In order to organize as an S-corporation or convert your business to an S-corporation, you have to file IRS form 2553. S-corporations can be a good choice for businesses that want a corporate structure but like the tax flexibility of a sole proprietorship or partnership.

LLCs

LLCs have grown in popularity over the recent years because they generally afford the owners with many of the positive attributes of the both the partnership and corporate structures.  They are generally flow through entities taxed as partnerships, however, they may make elections moving forward to be taxed as a C Corporation or an S Corporation.  The ability to ‘morph’ the LLC into whatever you desire it be for tax purposes had made this an increasing entity selection for business owners.

Regardless of your entity selection, please be sure to consult your professional advisors to insure that your business is protected in case any of its owners desire to exit the business, sell their interest, retire, or die unexpectedly.  Think of your teaming opportunities with that next prime or subcontractor and how structure could play an important role in your organization’s success.

Limited liability companies are a popular choice among construction contractors because they provide protection to an owner’s personal assets. All customer or creditor claims against the company are limited to the assets owned by the business. Additional advantages and disadvantages of the LLC structure are:

Advantages:

  • No restriction on who may own an LLC (dependent on tax structure chosen)
  • Flexibility to choose between a partnership or S corporation tax structure
  • LLCs may also be considered single-member LLCs

Disadvantages:

  • Taxed on the individual level (potential highest rate = 37%)
  • Not all states recognize LLCs
  • LLC statutes are not uniform in every state

As you can see, sole props and GPs are light on liability protections, so they expose you to greater legal risk if someone sues your business. But, taxation is simple when you have a sole prop or GP, and you don’t have nearly as many government regulations to comply with. That means more time to do what you love—running your business.

This being said, the simplicity of a sole prop or a partnership makes either of these business entity structures a good starting point for freelancers and consultants, particularly if the industry they’re in brings little legal risk with it.

If your business is in a more litigious industry, on the other hand, such as food service, child care, or professional services, that’s a strong reason to create an LLC or corporation right off the bat. And regardless of industry, as your business grows and more dollars are at stake, that can be the ideal time to “graduate” to an LLC or corporation. What works for a freelancer or hobbyist likely won’t work for someone who is trying to hire employees, bring on additional owners, or expand.

Although it’s certainly possible to change business structures at any point in your business’s journey, some changes are easier to make than others. For instance, it’s relatively simple to convert from a sole prop or partnership to an LLC by filing the right paperwork with your state.

Converting to a corporation, however, is more difficult, particularly if you plan to issue stock. Additionally, converting from a C-corp to an S-corp can bring unexpected taxes. Therefore, before changing your business structure, you’ll want to think through the possible advantages and potential problems associated with doing so and consult a business attorney for professional advice.

Moreover, you’ll want to keep in mind that the IRS places certain limits and deadlines on how often you can change your business’s entity type. Plus, it’s also worth remembering that different government tax plans can change how business entity types are taxed, and this may contribute to how taxes factor into your ultimate decision.

There is a lot of literature available to assist you with this decision, but the experience and guidance of your professional advisors is most helpful in avoiding unforeseen outcomes

All in all, you’ll want to keep the following in mind when deciding among the different types of business entities:

Sole proprietorships and general partnerships are good “starter” entities.

As your business grows and generates more income, you might consider registering as an LLC or corporation.

Think through the pros and cons of each business entity type in terms of legal protection, tax treatment, and government requirements.

Compare the general traits of these business structures, but remember that ownership rules, liability, taxes, and filing requirements for each business structure can vary by state.

business structure

https://www.sba.gov/business-guide/launch-your-business/choose-business-structure

Work with a business lawyer and accountant to get specific help for your business.

Ultimately, although there’s not a single best business entity choice for all small businesses, by referring to this guide and consulting legal or financial professionals, you’ll be able to determine which type is right for your business.

If you have any questions on setting up your entity or considerations to make for switching from one entity type to another, please contact us.

This law blog is written by the Taxation | Litigation | Immigration Law Firm of Coleman Jackson, P.C. for educational purposes; it does not create an attorney-client relationship between this law firm and its reader.  You should consult with legal counsel in your geographical area with respect to any legal issues impacting you, your family or business.

Coleman Jackson, P.C. | Taxation, Litigation, Immigration Law Firm | English (214) 599-0431 | Spanish (214) 599-0432| Portuguese (214) 272-3100

United States Temporary Protected Status designation for Venezuelans residing in the United States on March 8, 2021 | LEGAL THOUGHTS

Coleman Jackson, P.C. | Transcript of Legal Thoughts Podcast
Published April 26,2021.

United States Temporary Protected Status designation for Venezuelans residing in the United States on March 8, 2021

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Reyna Munoz, Immigration Legal Assistant of Coleman Jackson, P.C.   The topic of discussion is “Immigration Matters You Ought to Know About: United States Temporary Protected Status designation for Venezuelans residing in the United States on March 8, 2021”. You can listen to this podcast by clicking here:

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY:  Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY:  Coleman Jackson

Welcome to Immigration Thoughts

  • My name is Coleman Jackson, and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, and immigration law firm based in Dallas, Texas.
  • Our topic for today is: Immigration Matters You Ought to Know About: United States Temporary Protected Status designation for Venezuelans residing in the United States on March 8, 2021. Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant and Mayra Torres, Public Relations Associate.
  • On this “Legal Thoughts” podcast our immigration legal assistant, Reyna Munoz, will be asking the questions and I will be providing the answers to the questions on this very important immigration topic: Immigration Matters You Ought to Know About: United States Temporary Protected Status designation for Venezuelans residing in the United States on March 8, 2021.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Hi Attorney, thank you for joining me today and for taking the time to answer a few questions that I have in regard to the recent USCIS announcement about designating Venezuela Temporary Protected Status.

Question No. 1

Attorney, can you tell me, what this is about?

Attorney Answers Question 1:

  • Hi Reyna, yes what you heard is correct! On March 8, 2021, Secretary Mayorkas designated Temporary Protected Status or TPS for Venezuela. What this does is it allows Venezuelan nationals that are currently residing in the United States to file an initial application for TPS.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

Question 2:

That is great news attorney, I’m sure that this will help a lot of Venezuelan nationals. How long do Venezuelan nationals get to have this new Temporary Protected Status?

Attorney Answers Question 2:

  • Reyna, the TPS designation for Venezuelans is currently for a period of 18 months. That is it currently ends in September 2022.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

Question 3:

Why was this TPS designation for Venezuelans made at this time?

Attorney Answers Question 3:

  • TPS was designated for Venezuela because of the extraordinary and temporary conditions that prevent Venezuelan nationals from returning safely to their home country. The extreme and harsh conditions that currently confronts Venezuela are:
  • Hunger and malnutrition and lack of basic essentials for safety and security and human dignity
  • A growing influence and presence of non-state armed groups
  • Repression and recrimination by state actors, their enablers, and other bad people
  • A crumbling Venezuelan infrastructure

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • That is very interesting information attorney. It sounds like TPS for Venezuelans is a humanitarian response to dangerous times for our neighbors in Venezuela.

Question No. 4:

Who is eligible to apply for Temporary Protective Status under the new Venezuelan TPS designation?

Attorney Answers Question 4:

  • That is a very thoughtful and insightful question, Reyna, those individuals who are nationals of Venezuela who can demonstrate continuous residence in the United States as of March 8, 2021 are eligible to apply for Temporary Protected Status under this TPS designation. That means they must have been physically residing in the United States on March 8, 2021.
  • These TPS applicants will also have to go through security and background checks to determine their eligibility for TPS.
  • It’s extremely important that Venezuelans residing outside of the United States do not fall for scams and other misinformation from smugglers or others claiming that the border is now open. They must have been residing in the U.S. on March 8, 2021.  People should not risk their lives, or their families lives and health with false information that they can come from Venezuela now and claim TPS. This TPS designation is limited to Venezuelan nationals and is not applicable to citizens from other South American countries.
  • Furthermore, due to the coronavirus pandemic, travel and admission restrictions remains in full force and effect on the U.S. border.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

Question 5:

  • Thank you for explaining this in such a comprehensive manner, attorney. It is very important that people understand that:
  • they must be a Venezuelan national to be eligible for TPS under the Venezuelan TPS designation; and
  • they must have been residing in the United States on March 8, 2021;
  • Question No. 5:
  • When and how can eligible individuals apply for TPS?

Attorney Answers Question 5:

  • Those that would like to file an application for TPS will have to submit an application within the 180-day registration period, that is, March 9, 2021 through September 5, 2021. Keep in mind that they have to be able to show continuous residence in the United States since March 8, 2021 and continuous physical presence in the United States since March 9, 2021.
  • Form I-821 Application for Temporary Protected Status will have to be filed with USCIS and if the individual wishes to apply for employment authorization, they will have to file Form I 765. Furthermore, if a ground of inadmissibility applies, then Form I 601, Application for Waiver of Grounds of Inadmissibility will also have to be filed with the TPS package.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Thank you for that information, attorney.

Question No. 6:

What sorts of evidence will need to be submitted to USCIS in support the TPS application?

Attorney Answers Question 6:

  • The individual can expect to submit evidence such as identity and evidence to demonstrate that they are a national of the designate country such as:
    • A copy of their passport
    • A copy of their birth certificate
    • Any national identity that includes a photograph and/or fingerprint issued by their country
  • The immigrant can also expect to submit entry evidence such as:
    • A copy of their passport; and
    • I-94 Arrival/Departure record
  • Finally, continuous residence evidence will also have to be submitted. This could be evidenced by such documents and information as the following:
    • Employment records
    • Rent receipts, utility bills, receipts or letters from companies
    • School records
    • Hospital records
    • Attestations by church, union, or other organization officials

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • I’m sure a lot of people that are expecting to apply for TPS will find this information very helpful, attorney.

Question No. 7:

Is there a fee to apply for TPS?

Attorney Answers Question 7:

  • As of March 10, 2021, if the immigrant is applying for Venezuelan TPS and is between ages of 14 and 65 years old and they are applying for an employment authorization card, then the filing fee for the I-821 is $50, the biometric fee is $85, and the I-765 fee is $410 bringing the total USCIS filing fee to $545. These fees could be changed by the government with little notice.
  • Under certain facts and circumstances the TPS applicant can file Form I-912, Application for Fee Waiver in these TPS cases.

Reyna Munoz’s Concluding Remarks:

  • Thank you for this detailed explanation of the new TPS designation for Venezuelan nationals, attorney. Hopefully, many of our Legal Thoughts Podcast listeners or their friends from Venezuela will find this update on the new TPS designation for Venezuelans very helpful.
  • Our listeners who want to hear more podcast like this one should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever they listen to their podcast for more taxation, litigation, and immigration Legal Thoughts podcasts. Everybody take care!  Read our taxation, government contract litigation and immigration law firm’s blogs at www.cjacksonlaw.com.  Coleman Jackson, P.C., is located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620 Dallas, Texas 75206.
  • English callers: 214-599-0431 | Spanish callers:  214-599-0432 | Portuguese callers:  214-272-3100.

Attorney’s Concluding Remarks:

THIS IS THE END OF “LEGAL THOUGHTS” FOR NOW

  • Thanks for giving us the opportunity to inform you about “Immigration Matters You Ought to Know About: United States Temporary Protected Status designation for Venezuelans residing in the United States on March 8, 2021.” If you want to see or hear more taxation, litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tuned! We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, litigation and immigration.  Until next time, take care.

Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States | LEGAL THOUGHTS

Coleman Jackson, P.C. | Transcript of Legal Thoughts Podcast
Published May 10,2021.

Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Reyna Munoz, Immigration Legal Assistant of Coleman Jackson, P.C.   The topic of discussion is “Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States”. You can listen to this podcast by clicking here:

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY:  Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY:  Coleman Jackson

Welcome to Immigration Thoughts

  • My name is Coleman Jackson and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, immigration law firm based in Dallas, Texas.
  • Our topic for today is: Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States. Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant and Mayra Torres, Public Relations Associate.
  • On this “Legal Thoughts” podcast our immigration legal assistant, Reyna Munoz, will be asking the questions and I will be providing the answers to the questions on this very important immigration topic: Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Good morning attorney. Thank you for joining me today to talk about this incredibly important topic that our listeners will be learning about today.

Question 1:

Attorney, what is the Real ID Act of 2005 and why is it so important today?

Attorney Answers Question 1:

  • Good morning, Reyna. The Real ID act was passed by Congress in 2005 after the tragic terrorist attacks of 9/11/2001. The Real ID Act of 2005 “sets minimum security for license issuance and production and it prohibits federal agencies from accepting documents such as driver’s licenses and identification cards that do not meet the act’s minimum standards.” This is why when you go to the airport you will see a lot of signs that state that your driver’s license must be Real ID compliant. Real ID driver’s licenses usually have a star on the top right of the document. These ID’s are built with new technology and require a lot more paperwork from the applicant to prove their residency and their social security number. Why is the Real ID Act of 2005 relevant today? The Act is very important, and it is certainly relevant today because EVERY STATE WITHIN THE UNITED STATES MUST Be Real ID compliant by October 1, 2021. Those using driver’s licenses and identification cards issued by non-compliant States could be hindered from flying on airplanes, riding on trains and buses within the United States.  They could also be hindered or prevented from accessing federal buildings and potentially prevented from exercising other rights that they otherwise would have where a license or identification card is required. Perhaps many people don’t realize this; but, the driver’s license in their pocket or purse right now could already be Real ID compliant because many States have been issuing Real ID compliant driver’s licenses and other ID Cards for years now in compliance with the Real ID Act of 2005.
  • Reyna, the reasons that I have just listed are just some of the reasons why the Real ID Act of 2005 is relevant in 2021 and beyond. People who have licenses that are not compliant on October 1, 2021 could be hindered and possibly prohibited from doing a lot of things that people simply take for granted now.  People need to pull out their driver’s license to see whether it is Real ID compliant.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Attorney, I now clearly understand why the Real ID Act of 2005 is so important. Everyone needs to have a Real ID Act compliant driver’s license or ID card in their possession by October 1, 2021!

Question 2:

Does this mean that if people do not have a Real ID compliant document, they won’t be able to use their identification document anymore?

Attorney Answers Question 2:

  • No, not necessarily. The two words to pay attention to here is “not necessarily”. I mean, who wants the hassle when they simply are engaging in everyday life activities. I mean; they may get unnecessary questions and delays doing such things as traveling to see their extended family within the U.S. on a busy holiday.  They are stuck in some airport confirming their identity before they can get through airport security.  They could miss their flight.  This is merely a hypothetical of some inconvenience that could potentially occur from using non-compliant driver’s licenses after October 1, 2021.   But let me be clear here; for now, people will still be able to use their non-compliant real ID document to drive and vote. Many States are looking at State election laws right now and possibly Real ID compliant identification documents would be required to Vote by some State legislatures.  That is something to watch out for as the dust settles regarding these attempts to restrict voting by change or modification of election laws around the country.
  • Note that a REAL ID driver’s license or ID card cannot be used for international travel. Official Passports lawfully issued to the person by the U.S. Government or other appropriate government is required to travel internationally to anywhere in the world. However, beginning October 1, 2021, when it comes to domestic travel, people will need to provide other documents if they do not have a Real ID driver’s license or ID Card; such as:
    • A valid U.S. passport
    • Permanent Resident card
    • Border crossing card
    • Federally recognized tribal issued photo
    • USCIS Employment Authorization card
  • Again, the basic concern people should have when using a non-compliant driver’s license after October 1, 2021 is the real possibility of hassle and delays while officials or merchants or whoever conducts some form of inquiry or investigation trying to determine their real identity.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

I hear you, attorney; who needs the hassle; life is full of stress and strain as it is. Who need unnecessary disruption and drama created from using a non-compliant driver’s license?  But it’s good to see that people will still have other options to prove their real identity when it comes to domestic travel within the United States.

Question 3:

So tell me attorney, what categories of immigrants in the United States qualify to obtain a REAL ID driver’s license or State issued ID?

Attorney Answers Question 3:

  • Reyna, the following categories of immigrants in the U.S. are eligible to apply for a REAL ID driver’s license or ID card at their local Department of Motor Vehicles, (DMV):
    1. Immigrants who are currently United States Lawful Permanent Residents or Green Card Holders
    2. Immigrants who have a pending application for adjustment of status to lawful permanent resident
    3. Immigrants who are currently hold the status of temporary resident of the United States
    4. Immigrants who have conditional permanent resident status such as valid work permit in the U.S.
    5. Immigrants who have an approved asylum application
    6. Immigrants who have a valid unexpired nonimmigrant visa, such as, an F-1 Student Visa
    7. Immigrants who have a pending asylum application
    8. Immigrants who have a pending Temporary Protective Status Application or approved TPS
    9. Immigrants who have an approved deferred action status, such as Deferred Action of Childhood Arrival or DACA
  • Note that State and Local laws and regulations could be a factor as to who is eligible to apply for a driver’s license or ID Card. These State rules could potentially modify or even exclude immigrants from this eligibility for Real ID card list.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Thank you very much for this thorough presentation of those immigrants who are potentially eligible for Real ID.

Question 4:

So how will REAL ID impact undocumented immigrants who live in states that issue them a state ID, but don’t meet any of the categories you just mentioned?

Attorney Answers Question 4:

  • Well Reyna, the Department of Homeland Security, DHS has stated in several announcements that some States issue noncompliant cards to undocumented people. If that is so; DHS requires that those non-compliant driver’s licenses and ID cards clearly state that the ID card is not acceptable for REAL ID purpose. These non-compliant driver’s licenses have a unique design or color to differentiate them from Real ID compliant driver’s licenses and ID cards.
  • DHS has also made it clear, however, that just because an individual carries a noncompliant identification card or driver’s license does not mean that anyone should that the holder of this unique, stand out type card is undocumented.
  • A critical point that people should be aware is this one: Issuance of licenses to individuals are a matter of State law and not federal law.  States have the right to set their own standards, rules, and regulations eligibility for issuance of driver’s licenses and other licenses within their State.  Eligibility standards and application requirements are different from State to State.  For example, in California, undocumented immigrants are eligible to apply for a REAL ID compliant driver’s license or ID card in that State; however, undocumented people in Texas are not eligible to receive a Real ID compliant driver’s license or any other identification card.  People residing in Texas should check with the Texas Department of Motor Vehicle to learn the requirements for issuance of identification licensure within the State.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Okay, attorney, this has been very informative. You have made it crystal clear that issuance of driver’s licenses and identification documents are determined by State laws and regulations and not federal laws. Licensure rules vary from State to State.  Eligibility requirements are different in each State.  It just depends upon where the immigrant resides within the United States as to whether they can obtain a Real ID complaint driver’s license or other identification.   In Texas, check with the Department of Motor Vehicle for driver’s licensing eligibility requirements and procedures.
  • Some of the listeners of our Legal Thoughts Podcast reside in other States and even overseas. I have noticed.

Question 5:

Attorney, where can immigrants and others find more information on REAL ID in their own specific State since a lot of our listeners are not from Texas?

Attorney Answers Question 5:

  • Individuals who desire to learn more about REAL ID in regard to their own State, should visit: dhs.gov/real-id
  • This is a very user-friendly site with plenty of information readily available to anyone with an internet connection. Furthermore, the site has webpages explaining these REAL ID issues in Spanish, French, Chinese, Vietnamese, and Tagalog.

Reyna Munoz’s Concluding Remarks:

  • Thank you for sharing this website, attorney. Potentially many people could find all of this information incredibly timely and helpful since States must comply with the READ ID Act of 2005 and become compliant by October 1, 2021. Those are all my questions for now in regard to the REAL ID Act of 2005. Thank you for taking the time to discuss this important topic.
  • Attorney, thank you for the detailed information on Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts everyone in America; including, undocumented immigrants and other immigrants residing in the United States. Our listeners who want to hear more podcast like this one should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever they listen to their podcast for more taxation, government contract law, litigation and immigration Legal Thoughts podcasts. Everybody take care!  Read our taxation, government contract litigation and immigration law firm’s blogs at www.cjacksonlaw.com.  Coleman Jackson, P.C., is located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620 Dallas, Texas 75206.
  • English callers: 214-599-0431 | Spanish callers:  214-599-0432. Portuguese callers:  214-272-3100.

Attorney’s Concluding Remarks:

THIS IS THE END OF “LEGAL THOUGHTS” FOR NOW

  • Thanks for giving us the opportunity to inform you about Immigration Matters You Ought to Know About: Overview of the Real ID Act of 2005 and how it impacts all Americans, including undocumented immigrants and other immigrants residing in the United States. If you want to see or hear more taxation, government contract litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tuned! We are here in Dallas, Texas and want to inform, educate, and encourage our communities on topics dealing with taxation, government contract litigation and immigration.  Until next time, take care.

VAWA and the alternatives for immigrants who have been abused | Law Watch

Coleman Jackson, P.C. | Video Transcript of Watching Laws
Published May 21, 2021.

VAWA and the alternatives for immigrants who have been abused

Seeing Laws

  • A great welcome to our Law Watch viewers.
  • I’m Reyna Munoz. I’m the immigration legal assistant at Coleman Jackson, PC.; we’re located here in Dallas, Texas. Our law firm represents clients around the world in taxes, litigation, government contracts, and immigration.
  • This presentation is word for word from the Q&A session I had with the lawyer. Our topic today is: VAWA and the alternatives for immigrants who have been abused.
  • Attorney Coleman Jackson is the attorney at Coleman Jackson, P.C Other members are Yulissa Molina, Tax Attorney, Leiliane Godeiro, Legal Litigation Assistant, Mayra Torres, Public Relations Associate, and I, Reyna Munoz, Immigration Legal Assistant.

Lawyer Interview: Reyna Munoz

  • Question 1
  • Are we going to talk about a brief description and history about VAWA?

Lawyer: Coleman Jackson

Domestic abuse and violence is a very serious problem in America, not just immigrants.

Many people suffer emotional snubs, psychological abuse and physical violence at the hands of their loved ones and family members every day! Domestic abuse is absolutely terrible; this violence is simply uncivilized.

To address domestic violence against immigrants, the U.S. Congress first passed the Violence Against Women Act in 1994. This compassionate federal law contains protections and provisions that allow spouses and children abused by their U.S. citizen spouse or (USC) or legal permanent resident (LPR) or parent to file a self petition to obtain a green card without the help of their abuser. In fact, the abuser is not even notified of the self-request.

In addition, VAWA also allows parents abused by their U.S. citizen sons or daughters to make a “self-petition” to obtain a green card, without having to convince the abusive relative to file an immigrant petition on their behalf. VAWA is truly a confidential process; everything is kept secret and absolutely no cooperation from the abuser is needed or required.

VAWA’s immigration provisions are an attempt to correct a widespread situation, many immigrants are forced to remain in abusive relationships because their abusive relative can “hold them as ransom” because of their immigration status. For example, too often an abusive spouse will refuse to file a family visa petition to control an undocumented spouse. Either the abusive spouse will threaten to withdraw a petition or even call Homeland Security Department officials to deport the immigrant spouse if he or she tries to leave, resist abuse, or call the police.

In addition, under President Obama there was a reauthorization of VAWA that includes certain non-discrimination provisions. These non-discrimination provisions mean that applicants should now not be discriminated against on the basis of race, color, religion, national origin, sex, gender identity, sexual orientation or disability.

Also, the House recently passed the Violence Against Women Reauthorization Act that renews and strengthens this law. This expansion provides protection to native American women and survivors of under-served communities and improves efforts to prevent intimate partner violence.

Lawyer Interview: Reyna Munoz

Why did Congress decide to pass VAWA?

Attorney Coleman Jackson

For the exact reasons mentioned a moment ago. Congress simply did not want U.S. immigration laws to be used as another weapon in an abuser’s arsenal to terrorize his own loved ones. Therefore, the United States Congress passed the Violence Against Women Act, commonly known as “VAWA”, to allow a spouse or child in this uncivilized domestic situation to make a self-petition on their own, without having to rely on the abusive spouse or parent to file the immigrant visa application. Victims of abuse simply do not have to suffer in silence and endure the uncivilized behavior of their U.S. citizen or LPR relative. Again in 2005, Congress expanded these VAWA protections and provisions to allow parents of abusive U.S. citizens to also file their own petitions. VAWA is based on humanity!

Interview by: Reyna Munoz

What are some benefits that come with VAWA?

Lawyer: Coleman Jackson

VAWA offers self-petitioners the following types of benefits:

As long as the self-petition is approved, even if no adjustment request has been filed, VAWA’s petitioner can work legally in the United States and will not be deported during the months or years that may take for the petitioner’s priority date to become current.

VAWA self-petitioners can apply for a status adjustment in the United States, rather than having to leave the United States to process their visas at a consulate in the country of origin.

VAWA’s self-petitioner can receive many public benefits that are not available to other non-citizens.

And finally; The entire VAWA application process is completely confidential. VAWA’s confidential protections cannot be underestimated because many immigrants seeking VAWA have been emotionally, psychologically and physically harmed by their abuser. Many are very fragile at this time when they apply for VAWA protections; and most victims of immigrant abuse are away from their family, away from their friends and away from their natural social networks at home. They often feel alone; in fact, they are often alone. They left home to come here to get married and they’re Americans. VAWA is like an umbrella in the rain.

Interviewer: Reyna Munoz

Question 4:

Can only women apply for VAWA or can men and individuals of different sexual orientation also apply for protection and relief under the Violence against Women Act?

Lawyer interview: Coleman Jackson

The vast majority of victims of domestic violence are women in this country, if not around the world. However, it is important to note that men are sometimes victims of domestic violence. Sometimes women are abusers. Domestic violence is not limited to any particular gender. Therefore, VAWA immigration protections and provisions are available to abused husbands and wives, as well as to abused children and parents of any gender. In addition, as I mentioned earlier, several years ago when President Obama was in charge, Congress enacted additional VAWA provisions extending protections of acts of violence against women to eligible LGBT people and eligible Native Americans.

VAWA also protects children abused by USC or LPR parents. Let me point this out to be clear: even if the child was abused and the parent was not abused, the non-citizen parent may also qualify for VAWA, or if the parent was abused and the child was not abused, the child may also qualify. Simply put: Abused immigrant children can file a self-petition under VAWA.

Interviewer: Reyna Munoz

Question 5:

What are the requirements for self-requesting for VAWA?

Lawyer: Coleman Jackson

The spouse of the self-petition must prove that:

The abuser was (is) a permanent resident (LPR) or U.S. Citizen (USC)

The petitioner’s order is (or was) the spouse of the LPR or USC abuser, or the parent of a child who was abused by the LPR or USC spouse of the petitioner’ self-

The LPR or USC abused the self-petitioner during their marriage.

The marriage that forms the basis of self-petition was a marriage of good faith.

Either the petitioner resides in the United States, or if you live abroad, the LPR or USC abuser subjected the petitioner or your child to abuse in the United States or is an employee of the U.S. government or armed forces.

The self-petitioner has lived with the abuser.

The self-petitioner is a person of good moral character.

The attorney would like to clarify again how VAWA protections work when a child is involved. This is a very important point that I am about to make.  In some circumstances, an immigrant child of the abused spouse qualifies for status, even if the child was not abused, and also, in some circumstances, the parent of an abused child qualifies for status even if the parent themselves was not abused.

Interviewer: Reyna Munoz

Question 6

What behaviors qualify as “extreme or mistreated cruelty” for a victim to qualify for VAWA?

Lawyer: Coleman Jackson

USCIS may consider a wide range of abuser behaviors, such as:

Threatened with beating or terrorizing the victim;

Hitting, punching, slapping, kicking or hurting the person in any way;

Emotionally abuse of immigrants, such as insults at home or in public;

Sexual abuse or exploitation, including abuse or forcing the immigrant to have sex; or, forcing the immigrant into prostitution;

Threatened with taking the victim’s children or hurting children in any way;

Threatening to deport the victim, threatening to withdraw the family immigration petition, or threatening to hand over the immigrant to immigration authorities;

Exercise control over the immigrant, whether physical restrictions, emotional control or psychological control over the immigrant or their children. Actions and threats to control where the immigrant is going, what the immigrant does; how they dress and live and with whom they socialize and similar controlling behavior.

By force detained the immigrant or physically arrested the immigrant or otherwise restricted the immigrant’s free movement;

Participate in a series of acts that, on their own, would not normally constitute abuse; but together it demonstrates private and abusive and destructive behavior for the immigrant, whether emotionally, psychologically or physically;

Threatened or committed acts of violence against a third person in order to frighten the immigrant; such as abuse, neglect or neglect of minors.

The abusive and uncivilized behaviors I have mentioned are not exhaustive because the imagination and cruelty that people can exercise over others can have all kinds of intentions and show all kinds of human depravities. Immigrants seeking VAWA protection should seek advice from professionals working with victims of abuse. Violence in any form is uncivilized; everyone should be treated with dignity and respect.

Interviewer: Reyna Munoz

Question 7

Does the victim making the self-petition have to live in the United States to apply for VAWA?

Lawyer: Coleman Jackson

A petitioner must reside in the United States when they file the petition; unless there are some special conditions that I will talk about in more detail in a few minutes. A petitioner who recently moved to the United States may also be eligible. In other words; the time the immigrant is in the United States is not relevant as to whether he or she is eligible to apply for VAWA in the United States.

Now as for abused immigrants residing abroad at the time they apply for VAWA; The following non-citizens can apply for VAWA outside the country:

  1. The immigrant is married or married to the abusive spouse who is an employee of the U.S. government or member of the U.S. military, or
  2. The immigrant is married or married to the abusive spouse who subjected the petitioner’s or petitioner’s child to extreme aggression or cruelty in the United States.

VAWA’s statute requires that the immigrant have lived with the abuser at some point. But I must point out here that the law does not impose any time period rules on how long the petitioner must have lived with the abuser, nor does VAWA require the victim of  abuse to live with the abuser at the time the self petition is filed. Therefore, a petitioner can qualify even if the victim only lived with the abuser for a short time, or only in another country under the circumstances I just mentioned.

Interviewer: Reyna Munoz

Question 8

Aside from VAWA, are there other relief options for immigrants abused in U.S. immigration law?

Attorney Coleman Jackson

If there are other immigrant relief options, such as:

  1. Conditional Residency: Conditional residency means that the USC or LPR spouse filed a petition, the petition was approved, and the immigrant spouse actually received a conditional “green card” that lasts two years. In cases of conditional residence, the married couple must file a petition to eliminate the condition near the end of this two-year conditional residence period. Instead of enduring an abusive or harmful relationship during this period and waiting for your spouse to help file the joint petition, the conditional resident may have the option to leave the relationship and obtain a special “abused spouse waiver” to eliminate the condition. In the event that this self petition is granted, the abused immigrant would receive his/her permanent residence card. Like VAWA, the elimination of conditional residency status is humanitarian relief in which abused immigrants are not subjected to rampant abuse in a failed marital situation.
  2. Victim of crime/investigation or prosecution witness: The “U” visa: Abused men and women who do not qualify for VAWA (for example, because they are not legally married or their abusive spouse is not a USC or LPR) may be eligible for non-immigrant status or “U” visa which was a federal law enacted by the United States Congress around 2000. The U visa benefits victims of felonies who are willing to assist in a criminal investigation in the U.S. The U visa is not limited to domestic violence offences committed by LPR or USC spouses. The law does not lay down requirements on the status against the immigrant victim: the perpetrator may be a stranger or a family member, a citizen or an undocumented worker; the perpetrator could be a non-citizen visitor to the United States. Types of criminal offenses can range from sexual assault, physical assault, kidnapping, incest to many other types of felonies. The “U” visa provides temporary status and can lead to permanent residency.

However, another possible option for certain immigrants is the “T” visa, which is available to immigrants who were victims of felonies. Generally the person must have endured conditions of forced labour or been a minor immigrant forced into prostitution or other depraved sexual exploitation activity.

  1. Cancellation of domestic violence deportation under VAWA: Some qualifying immigrants may instead wish to apply for VAWA deportation cancellation because they are not eligible for self-petition, or because waiting for legal permanent residency will take too long. This could be the case when abused immigrants were married to an LPR. In that case, they must wait until the visa is available; which could take years in some cases. Non-eligible citizens who have been abused and who are in deportation for any reason may ask the immigration judge to cancel the deportation by VAWA.

Interviewer: Reyna Munoz

Those are all the questions for now. I want to thank the lawyer for educating us about VAWA and the alternatives for immigrants who have been abused. Our audience who wants to watch more videos like this should subscribe to our Youtube channel and our listeners who want to listen to a podcast like this should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever they listen to their podcast. We are here in Dallas, Texas at 6060 North Central Expressway, Suite 620 Dallas, Texas 75206.

English calls: 214-599-0431 | Calls in Spanish: 214-599-0432. Portuguese calls: 214-272-3100.

Thank you for giving us the opportunity to inform you about VAWA AND the alternatives for immigrants who have been abused.

Again, I’m Reyna Munoz, Immigration Legal Assistant with Coleman Jackson, P.C. a tax, litigation, government contract litigation, and immigration firm based here in Dallas, Texas.

This is the end of Law Watch for now; Share our Law Watch video with family and friends.

This has been a  word for word presentation from the Q&A session I had with the lawyer. I’m Reyna Munoz, Assistant Legal Of Coleman Jackson, P.C. Everybody be all right and take care.

Immigration Matters You Ought to Know About: Undocumented Immigrants and the I-601 and I-601A Unlawful Presence Waivers | LEGAL THOUGHTS

Coleman Jackson, P.C. | Transcript of Legal Thoughts Podcast
Published March 29, 2021.

Undocumented Immigrants and the I-601 and I-601A Unlawful Presence Waivers

Legal Thoughts is a podcast presentation by Coleman Jackson, P.C., a law firm based in Dallas, Texas serving individuals, businesses, and agencies from around the world in taxation, litigation and immigration legal matters.

This particular episode of Legal Thoughts is a podcast where the Attorney, Coleman Jackson is being interviewed by Reyna Munoz, Immigration Legal Assistant of Coleman Jackson, P.C.   The topic of discussion is “Immigration Matters You Ought to Know About: Undocumented Immigrants and the I-601 and I-601A Unlawful Presence Waivers”. You can listen to this podcast by clicking here:

You can also listen to this episode and subscribe to Coleman Jackson, P.C.’s Legal Thoughts podcast on Apple Podcast, Google Podcast, Spotify, Cashbox or wherever you may listen to your podcast.

TRANSCRIPT:

ATTORNEY:  Coleman Jackson
Legal Thoughts
COLEMAN JACKSON, ATTORNEY & COUNSELOR AT LAW

ATTORNEY:  Coleman Jackson

Welcome to Immigration Thoughts

  • My name is Coleman Jackson, and I am an attorney at Coleman Jackson, P.C., a taxation, litigation, immigration law firm based in Dallas, Texas.
  • Our topic for today is: Immigration Matters You Ought to Know About: Undocumented Immigrants and the I-601 and I-601A Unlawful Presence Waivers. Other members of Coleman Jackson, P.C. are Yulissa Molina, Tax Legal Assistant, Reyna Munoz, Immigration Legal Assistant, Leiliane Godeiro, Litigation Legal Assistant and Mayra Torres, Public Relations Associate.
  • On this “Legal Thoughts” podcast our immigration legal assistant, Reyna Munoz, will be asking the questions and I will be providing the answers to the questions on this very important immigration topic: Immigration Matters You Ought to Know About: Undocumented Immigrants and the I-601 and I-601A Unlawful Presence Waivers.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Attorney, thank you for joining me today and for taking the time to discuss the Application for Waiver of Grounds of Inadmissibility, I 601 and the Application for Provisional Unlawful Presence Waiver, I 601A.

Question 1:

Attorney, can you tell me, what is the I 601 and the I 601A waiver?

Attorney Answers Question 1:

  • Sure Reyna. A lot of immigrants in Texas came to the U.S. undocumented; therefore, they need a Waiver of Unlawful Presence. many undocumented immigrant parents waste their money when their U.S. citizen children turn 21. They waste their money because although they can successfully get their I-130, Petition for Alien Relative petition approved, their U.S. citizen children do not qualify for the U.S. person who will suffer extreme and unusual hardship if the undocumented immigrant is not granted an I-601 waiver for unlawful presence in the U.S.  Bottom line, it’s a waste of money to file an I-130 when you do not have a qualifying relative to satisfy Form I-601, Application for Waiver of Grounds of Inadmissibility based on the unlawful presence ground of inadmissibility.  The undocumented immigrant needs a qualifying relative who will suffer extreme hardship if the undocumented immigrant is not permitted to immigrate to the United States.  The extreme hardship requirement for a waiver of unlawful presence can only be satisfied by a qualifying relative, such as, a U.S. citizen parent or U.S. citizen spouse.  Repeat, U.S. citizen children do not and cannot satisfy the qualifying relative requirement; therefore, unless the undocumented immigrant has a qualifying relative, it is a waste of time, effort, and money for their 21-year-old child to file an I-130, Petition for an Alien Relative on their behalf if the intent is to get a Green Card through the child.  A big log or bolder is blocking the road for the undocumented immigrant seeking a Green Card through their 21-year-old child.  The parents need a qualifying relative! If they had a qualifying relative, the parents probably would have gotten their Green Cards years ago.
  • Form I-601A, Provisional Waiver of Unlawful Presence is a waiver request based on humanitarian concerns of immigrants leaving the U.S. who are barred from returning for 5 to 10 years due to the fact that they have spent more than 180 continuous days unlawfully in the U.S. Before the I-601A provisional waiver process was implemented, these parents and other undocumented immigrants would leave the U.S. without an I-601 Waiver and when they got to the Consulate in their home country, they learned that they needed a waiver of unlawful presence to return to the United States.  The waiver was typically then prepared in the foreign country and submitted for approved by the U.S. Consulate Office.  Often times the Consulate would deny the waiver and therefore the immigrant would get stuck for 5 to 10 years in their home country with their husband, or wife and children remaining up here.  Family separation occurred as an inherent feature of the immigration waiver process.  The Form I-601A was created to hopefully prevent this harsh family separation reality.  Form I-601A can only be used to request waiver for unlawful presence.  It cannot be used to request a waiver or pardon for any other reason of inadmissibility of the undocumented immigrant.  For example, if there are crimes in the immigrants’ background or medical or health issues, DUI issues, Domestic Violence issues or other inadmissibility issues with the immigrant, the I-601A waver cannot be used for these grounds of inadmissibility.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Thank you for this detailed explanation Attorney. You’re correct, a lot of times undocumented people think that once their child turns 21, they will immediately be able to apply for a green card, but it is important for them to understand that this is a process and they need a qualifying relative who suffer extreme and unusual hardship in the event the undocumented immigrant leaves the U.S. and is not permitted to return for 5 to 10 years.

Question 2:

Attorney, what are the differences between the I 601 and the I 601A?

Attorney Answers Question 2:

  • The I 601 waiver is used to request waiver or pardon for a host of areas of inadmissibility, such as, unlawful presence, physical or mental health (such as, DUI, domestic violence could be considered by some Consulate Officers as indications of mental illness); whereas, the I 601A provisional waiver can only be used to request a pardon for unlawful presence in the U.S. Inadmissibility based on mental health, physical health, crimes, or other grounds of inadmissibility are not eligible for consideration in an I 601A waiver case.
  • The I 601 waiver is granted to pardon numerous offending grounds of inadmissibility; whereas the I 601A waiver is a provisional waiver of unlawful presence.
  • The I 601 waiver is typically filed at the U.S. Consulates Office by undocumented immigrants seeking a green card through a qualifying relative; whereas, the I-601A provisional waiver of unlawful presence is filed inside the U.S. before the immigrant leaves the United States. It is provisional in the sense that the Consulate Officer will make the final determination as to whether the immigrant is admitted to return to the United States.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • It sounds like the these understanding the use and purpose of these two forms and this whole area of immigration waiver law are incredibly important topics for many immigrants residing in Texas and throughout the Southwest.

Question 3:

Who can file an I 601, Application for Waiver of Grounds of Inadmissibility?

Attorney Answers Question 3:

  • Reyna, the following types of immigrants may file Form I 601, Application for Waiver of Inadmissibility:
    1. Those applying for adjustment of status
    2. Those applying for Temporary Protected Status, TPS
    3. Those who are applying for adjustment of status under the Nicaraguan Adjustment and Central American Relief Act
    4. Those who are applying for an immigrant visa or adjustment of status under Violence Against Women’s Act (VAWA), And finally,
    5. Special Immigrant Juveniles who have an approved I 130, Petition for Alien Relative.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

Question 4:

Thank you for that detailed list, attorney. Now tell me, who is eligible to file the I 601A, Provisional Unlawful Presence Waiver??

Attorney Answers Question 4:

  • Reyna, those eligible to file the I 601A Provisional Waiver for Unlawful Presence must meet the following requirements:
    1. They must be physically present in the United States at the time of filing;
    2. They must be least 17 years of age or older;
    3. They must have a case pending with the United States Department of State because they are: (A) the principal beneficiary of an approved I-130 or they are the beneficiary of an approved I 360; or (B) they are the spouse or child of a principal beneficiary of an approved immigrant visa and have paid the immigrant visa processing fee; or (C) they have been selected by the Department of State to participate in the Diversity Visa program; and
    4. They must be able to demonstrate that denying admission to the United States would result in extreme hardship to a relative U.S. citizen spouse or U.S. citizen lawful permanent resident or parent.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

Question 5:

Attorney, in regard to the I 601A you mentioned “extreme hardship,” what exactly does this term mean in U.S. immigration law?

Attorney Answers Question 5:

  • That is correct, Reyna. The applicant must demonstrate that being denied the entrance back into the United States will cause extreme hardship to their qualifying relative. Some of the areas of the qualifying relative’s life that might be relevant in support of an I-601 or I-601A, Application for Waiver to overcome unlawful presence ground of inadmissibility are:
    1. Education: Disruption of current academic programs or loss of opportunity for higher education due to lower quality education in home country;
    2. Personal considerations: Such as separation for close relatives in the United States
    3. Financial considerations: Cost of caring for family members or loss of job
    4. Health of the qualifying relative: Ongoing medical treatments in the United states
    5. Special Considerations: fears of persecution or cultural differences in home country
  • Keep in mind that the U.S. citizen relative must prove that they will suffer extreme financial hardship if their immigrant relative is not allowed back into the country. The hardship must be more than the mere normal and expected financial difficulty derived from lack of the undocumented immigrants earned income, family relations or household support. The hardship that might be experienced by the undocumented immigrant or their children are not factors that the adjudicators typically would consider when evaluating waiver cases.  Even when a qualifying relative meets the extreme hardship requirement, it simply means the adjudicator of the waiver application can exercise discretion and grant the waiver.  It is not mandatory that the waiver be granted even when extreme hardship is clearly shown.

Interviewer:  Reyna Munoz, Immigration Legal Assistant

  • Attorney thank you for summarizing what term “extreme hardship” means in the unlawful presence waiver context. This is such an important fact and potential hurdle for all immigrants who must meet the extreme hardship requirement to overcome the unlawful presence ground of admissibility.

Question 6

Attorney, my final question regarding the unlawful presence waiver is this:   Is there a filing fee for Form 1 601 and Form I 601A?

Attorney Answers Question 6:

  • Yes Reyna, there is a USCIS filing fee for both of these forms.
  • As of March 11, 2021, the filing fee for the I 601, Application for Waiver of Grounds of Inadmissibility is $930 and the filing fee for the I 601 A, Application for Provisional Unlawful Presence Waiver is $630.
  • USCIS filing fees are subject to change with little notice.

Reyna Munoz’s Concluding Remarks:

  • Attorney, thank you for the detailed information on both the Application for Waiver of Grounds of Inadmissibility, I 601 and the Application for Provisional Unlawful Presence Waiver, I 601A. Unlawful presence in the U.S. is a hurdle facing many immigrant families throughout Texas and the Southwest in general. This information may prevent them from spending their hard-earned money unwisely.  I mean, if they don’t have a qualifying relative in the U.S. for the unlawful presence waiver; that sounds like a big problem.  I mean that is a huge problem, Attorney!  Like you said, its like a big log or bolder stretching across the road blocking the path to a Green Card for people who have been here for a while undocumented.
  • Our listeners who want to hear more podcast like this one should subscribe to our Legal Thoughts Podcast on Apple Podcast, Google Podcast, Spotify or wherever they listen to their podcast for more taxation, litigation and immigration Legal Thoughts podcasts. Everybody take care!  Read our taxation, government contract litigation and immigration law firm’s blogs at www.cjacksonlaw.com.  Coleman Jackson, P.C., is located right here in Dallas, Texas at 6060 North Central Expressway, Suite 620 Dallas, Texas 75206.
  • English callers: 214-599-0431 | Spanish callers:  214-599-0432. Portuguese callers:  214-272-3100.

 Attorney’s Concluding Remarks:

THIS IS THE END OF “LEGAL THOUGHTS” FOR NOW

  • Thanks for giving us the opportunity to inform you about Immigration Matters You Ought to Know About: Undocumented Immigrants and the I-601 and I-601A Unlawful Presence Waivers
  • Immigrants who have resided in the United States for more than 180 days continuously without lawful status has a major problem under current immigration law. They need a waiver or pardon for unlawful presence when they leave the U.S. in order to lawfully reenter the U.S.  That in a nutshell is what the I- 601 and I-601A waivers are designed to accomplish as far as unlawful presence is concerned.  This is the current state of immigration law in the United States as it pertains to undocumented immigrants and current waiver unlawful presence.
  • If you want to see or hear more taxation, government contract litigation and immigration LEGAL THOUGHTS from Coleman Jackson, P.C. Stay tuned! We are here in Dallas, Texas and want to inform, educate and encourage our communities on topics dealing with taxation, government contract litigation and immigration.  Until next time, take care.