Categories
Updates

USCIS Publishes Updated H-2B Visa Numbers – October 25, 2013

Share this:

On October 25, 2013, USCIS provided an update of the amount of
cap-subject H-2B visas received and approved by the federal agency for
the first and second halves of Fiscal Year 2014. According to USCIS, a
total of 6,848 beneficiaries have been approved for the first half of
Fiscal Year 2014, with an additional 1,417 petitions pending. No
beneficiaries have yet been approved for the second half of Fiscal Year
2014.

Congressionally-based legislation limits the amount of H-2B visas
provided per fiscal year to a total of 66,000, with 33,000 allocated for
employment for the first half of the fiscal year and 33,000 allocated
for employment for the second half of the fiscal year. Unused numbers
from the first half of the fiscal year are made available for use by
employers seeking H-2B workers during the second half of the year.

Categories
Immigration Round Table

Why Approved Visa Petitions Are Returned to USCIS?

Share this:

After waiting for several years for a petition’s priority date to become current and ready for visa processing, several factors may still result in the termination of an approved petition. This may happen both in the family based and employment based petitions. Below is a letter from a parent of a beneficiary of an approved employment petition seeking clarification on why her daughter’s petition was returned to the U.S. Citizenship and Immigration Services.

Dear Atty. Lou

My daughter’s I-140 (employment petition) was approved in 2007.  The employer paid the visa fees since the priority date is already current. But recently when my daughter checked the petition status,  the National Visa Center (NVC) told her that her papers were returned to US Citizenship and Immigration Services (USCIS) and the reason is for background check and for extended review.

To my daughter’s surprise, she found out that 16 of those who were petitioned are facing the same problem with the same Petitioner company.   I would like to know why this is happening to my daughter’s petition?  How long will it take for the USCIS to review and complete an extended background check?  Is it possible to re-apply or apply to another company using the same petition?  What are my daughter’s options? I look forward to a response.

RM

Dear RM,

As I mentioned, nothing is permanent with an approved petition whether it be based on a petition filed by a family or employer. In family petitions, the death of the petitioner results in the death of the petition as well. Same case with employment petitions, the closure of the business of the petitioner likewise will result in the termination of the employment petition. Other grounds for possible revocation are lack of qualifying relationship. In a spouse petition, the divorce or annulment of the marriage will result in revocation of the petition. The same with employment based petitions where the job offer no longer exists or is withdrawn by the employer, the employment petition is automatically revokes.

I am not particularly aware of the circumstances of your daughter’s petitioner. If several petitions were filed by the petitioner, there is probably an issue of either the existence of the job offer for all the 16 beneficiaries or future employees; or it could probably be just a review check of whether the petitioner’s business is still viable for purposes of paying the required wages. Many other reasons could be raised for the possibility of a revocation. Of course, prior fraud or misrepresentation could also be a ground for revocation especially in cases where there is no actual financial ability to pay the wages on the part of the employer-petitioner.

The fact that the petition was returned by the National Visa Center to the USCIS means that there is a possibility that information is in the possession of the USCIS that raises doubt on the continued validity of your daughter’s petition. What happens after the petition was returned to the USCIS is that the petitioner will receive a letter from the USCIS affording him the opportunity to respond to the issues that may affect validity of the petition. When the petitioner receives this letter, he should respond to it appropriately. Hopefully, the issues that will be raised in the letter may be easily addressed so that your daughter may receive her visa soon.

If you know the contact information of your daughter’s petitioner or their attorney, you may want to inquire directly if they receive a notice from the USCIS. If they receive the letter from USCIS you may want to ask for a copy to determine the cause of the extended review. If everything is addressed without a problem, your daughter will receive her visa. Otherwise, she may wish to seek a different petition through a different employer. She may want to recapture her priority date from the approved petition in order that she does not have to wait long for her new approved petition.

I hope this information is helpful to you.

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her principal office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 1 888 930 0808, email at law@tancinco.com or visit her website at tancinco.weareph.com/old. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)

Categories
Global Pinoy

Obamacare and the Immigrant Family

Share this:

In a few months, the health insurance program of President Obama, the Affordable Care Act, more popularly known as Obamacare, will take full effect. With a few exceptions, the American public is expected to have health insurance coverage. Those who are not able to afford paying the premiums will get assistance from the federal government. For a Filipino immigrant who recently arrived from the Philippines, will he be expected to take advantage of the benefits of the Obamacare? What about those who have fallen out of status or whose authorized stay expired, will they be able to benefit from Obamacare?

Jesse and Ann are both green card holders. They have two minor children who are in elementary school. Jesse works as a contractor for a construction firm and Ann is left in the house to take care of his children.

Being self employed, Jesse does not have insurance coverage for himself and Ann. They live in California and Jesse earns $45,000/year. Instead of obtaining insurance coverage and paying high premiums every month, Jesse spent most of his money for their everyday living expenses.

Jesse heard that there is a mandatory requirement to get health insurance coverage beginning January 1, 2014. He still has no plans to obtain insurance but is afraid of paying penalties. If Jesse cannot afford health insurance coverage, how can he comply with the requirement of the Affordable Care Act to get insurance coverage? How can he get assistance from the US government?

The Current Health Care System

The health care system in the United States is flawed in many ways. It is private insurance most commonly provided through employers. The public  health care system is limited only to seniors (like Medicare) or the low income (Medicaid).

Without insurance, the cost of healthcare is beyond reach by most Amercians and one devasting illness can spell the difference between a family being financially secure one day and bankrupt the next.

in an employer-based system, providing healthcare for the employees is a challenge, particularly for small business enterprises. Due to the constantly increasing costs of healthcare plans, business owners are sometimes forced to employ practices to limit or altogether avoid health care coverage for their employees.

When access to health care is not seen as a right but viewed as a privilege available only to those who can afford it, when society’s health care system is motivated by profit instead of the adoption of sound policies to promote health and invest in preventive care, problems are compounded to a point where nothing makes sense. Patients do not seek medical intervention until it is too late, emergency procedures become rampant, there are medical providers who may perform or limit medical procedure not on the basis of a patient’s needs but to increase a provider’s profit margin.

For the low and middle income immigrant families, obtaining health care insurance is not affordable.  In some instances, even if they could afford the premiums, an insurance company could simply put a lifetime cap on coverage or even decline coverage arbitrarily because of “pre-existing” conditions.

Countdown to Obamacare

The Affordable Care Act (or Obamacare) is an attempt to curb these practices, put a rein on the rising costs of care, and address some of the problems of our failed health care system. Obamacare was enacted into law in 2010, some of its seminal provisions are already in place, others will be phased in incrementally. On January 1, 2014, the insurance mandate is to take effect. Obamacare requires citizens to obtain insurance coverage or risk paying penalty of $95 that will increase to $695 in 2016. “Health care marketplaces” were opened this October and are now operating through websites so the public may shop online for the best prices and services. Few states have their own healthcare exchange marketplace and if the specific state has no market place they can go to the federal website called healthcare.gov. As soon as an individual is able to identify a plan that suits his needs, there will be a computation on how much in premium he is to pay, less the subsidized amount from the federal government. Tax credits will offset the amount of subsidy and the individual will end up paying less premium.

In the case of Jesse and Ann, they may log on to the “healthcare marketplace” website and choose a plan that suits their needs. Whatever amount is the monthly premium, the government will share a portion of it through tax credits. Hence, if for example Jesse’s premium is $400, considering his income and size of his family, he will be provided with tax credits, which will reduce the $400 to a significantly low premium.

Obamacare will not affect those who have insurance coverage through their employment or those who are happy with their private insurance.  Senior citizens with Medicare should not dropped off their Medicare coverage because Obamacare has no effect on Medicare. Also, veterans with Tri-Care insurance will not be affected by Obamacare.

Obamacare, while it is a marked improvement from the failed health care system it sought to address, is far from ideal. Specifically, the political wranglings in Congress, like the wranglings currently in play on the issue of immigration reform, caused a huge portion of the population to be forgotten on the fundamental question of access to healthcare. Undocumented immigrants, or the “TNTs”, are not covered by Obamacare.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)

Categories
Updates

USCIS to Temporarily Accept Labor Certification Copies for H-2A Petitions

Share this:

After the 16-day shutdown, the federal government is once again up and
running and the Office of Foreign Labor Certification is once again
accepting and processing applications such as the Temporary Labor
Certification (TLC). Due to delays caused by the shutdown, the
Department of Labor (DOL) is allowing for certain exceptions in the use
and management of PDF versions of TLCs.

DOL issued an announcement on October 21, 2013, that once a TLC is
certified the Chicago National Processing Center will send an email to
an employer and its authorized representative with a PDF version of the
labor certification. The employer should print, sign and date the PDF
file to submit to USCIS with Form I-129, the Petition for Nonimmigrant
Worker.

Normally, USCIS requires that petitioners submit certified TLCs on blue
security papers with original signatures. However, as of October 24,
USCIS will temporarily accept I-129 H-2A petitions filed with just the
copy of a TLC. Signature on the TLC do not need to be original during
this temporary process, which is being implemented due to the time
sensitive nature of agricultural work.

Categories
Updates

USCIS Accepts Nearly 70,000 Refugees in Fiscal Year 2013

Share this:

USCIS announced this week that it nearly reached the authorized ceiling
for refugee admission in Fiscal Year 2013. This year, 69,930 refugees
came to the United States, just 70 refugees lower than the authorized
ceiling of 70,000. This number is higher than any number in any previous
year since 1980.

According to the Department of State, “reaching this threshold is a
demonstration of the Administration’s efforts to create a refugee
admissions program which meets the important security screening
standards required by the American people and the growing humanitarian
need.

President Obama has again authorized the admission of up to 70,000
refugees for Fiscal Year 2014. It is expected that many refugees will
come from Iraq, Burma and Bhutan. It is also expected that refugees will
begin coming from Congo and Syria as well.

Categories
Updates

USCIS to Accept Government Shutdown as Extraordinary Circumstance for Extension of Stays and Change of Status Requests

Share this:

The government shutdown affected numerous immigration services, many of
which are now returning to service. On October 18, USCIS alerted that if
an H-1B, H-2A or H-2B petition is submitted with evidence that shows
that the primary reason for the extension of stay or change of status
request not being filed on time was the government shutdown, the late
filing would be excused, as long as the petitioner met all other
applicable requirements.

In addition, the Department of Labor informed the public that the PERM
system was restored on 12:30 pm on October 18. iCERT was restored at 11
am on October 18.

Categories
Updates

USCIS Publishes Updated H-2B Visa Numbers October 11, 2013

Share this:

On October 11, 2013, USCIS provided an update of the amount of
cap-subject H-2B visas received and approved by the federal agency for
the first and second halves of Fiscal Year 2014. According to USCIS, a
total of 6,238 beneficiaries have been approved for the first half of
Fiscal Year 2014, with an additional 1,297 petitions pending. No
beneficiaries have yet been approved for the second half of Fiscal Year
2014.

Congressionally-based legislation limits the amount of H-2B visas
provided per fiscal year to a total of 66,000, with 33,000 allocated for
employment for the first half of the fiscal year and 33,000 allocated
for employment for the second half of the fiscal year. Unused numbers
from the first half of the fiscal year are made available for use by
employers seeking H-2B workers during the second half of the year.

Categories
Global Pinoy

Airport to Airport

Share this:

The Nightmare of an “Unwelcomed Traveler”

The 15 hour flight from Manila to the United States may be frustrating for travelers who are subjected to intensive interrogation at the port of entry. The possession of a valid visa issued by the consular officer at the US Embassy is not a guarantee of a smooth passage through the U.S. ports of entry. Even lawful permanent residents or green card holders may be detained and be placed in removal proceedings. But what will trigger the nightmare of a traveler being sent back to his country of origin? How often does this happen? What  makes well intentioned travelers “unwelcomed travelers”?

Detained and Deported

In the news this week is the case of a 63 year old Filipina seeking admission to enter the United States. Instead of being allowed in, she was allegedly subjected to intensive interrogation, and per her account, “treated like a criminal” by the Customs and Border Protection inspectors.  If the reporting of the incident was accurate, it is easy to empathize with her plight because there appears to be no indication that she has violated any law that could have prevented her from entering the United States. After all, a CBP inspector will not refer a traveler to a secondary inspection without basis—there has to be a reason for doing so.

The U.S. Customs and Border Protection

Upon arrival at a US Port of Entry, all individuals must undergo a process of “primary inspection.” During this inspection, a CBP officer will make a preliminary assessment of the individual’s admissibility to the United States. In the event the primary inspection officer determines there may be issues as to admissibility, that officer will refer the individual to ‘secondary inspection’ for a more thorough evaluation.

“Issues of admissibility” refer to grounds under the law that will provide authority to the CBP officer to deny entry to an arriving alien. Example of inadmissibility grounds  of a nonimmigrant or temporary visitors visa holders are prior immigration violations, criminal history, fraud, misrepresentation or simply lack of valid documents.  Those who are determined to be inadmissible may be deported back to their country of origin in a process called “expedited removal.”  This is often referred to as “airport to airport” decisions.

Considering the drastic penalty of an expedited removal, the CBP officer is required  to follow protocol.  The person being sent back on an airport to airport basis is required to give a statement to the CBP officer and signed by the traveler.

The traveler must be advised of the charges against him or her. However, before the charges can be served upon the individual, the order must receive supervisory approval. Hence, it is expected that the charges and the adverse decision of an expedited removal has been reviewed and approved by supervising officers before becoming a final order of removal/deportation.  Upon review and thereafter the  concurrence of the supervisor, Form I-860 (Notice and Order of Expedited Removal), will be served upon the foreign national.

 Withdrawal of Admission: Alternative to Expedited Removal

When a traveler is made aware of a probable decision of an expedited removal, he has the option but not the right to withdraw his request for admission. This is an alternative to the issuance of an expedited removal order and the CBP has the discretion to allow the applicant to withdraw the application for admission.

Factors that the CBP may take into consideration when determining whether withdrawal is appropriate include: seriousness of the immigration violation; previous findings of inadmissibility against the alien; intent on the part of the alien to violate the law; ability to easily overcome the ground of inadmissibility; age or poor health of the alien; and other humanitarian or public interest considerations. However, situations involving obvious, deliberate fraud warrant expedited removal.

Seeking Redress

It is not unusual that harsh questioning of travelers during secondary inspections are experienced. Most of the time, the CBP inspectors are already in possession of derogatory information against the traveler and are just waiting for the traveler to admit to the information they have as true. If there is no admission of wrong doing, however, and if the removal order is without basis, the adverse decision may still be overcome.

Once the traveler returns to the Philippines on an expedited removal, the matter may be addressed by communicating with the CBP officers responsible in issuing the decision or their supervisors. The CBP has established a procedure for addressing concerns of travelers regarding inappropriate CBP officer behavior during interrogation. If the CBP supervisor is convinced that the actions were not warranted, the removal order may be rescinded and converted to a voluntary withdrawal of admission. Another way to deal with the adverse decision is to re-apply for a new U.S. visa, seek a waiver of the 5 year bar (occasioned by the fact of prior removal), explain the errors in the removal order, and provide the necessary documents supportive of the traveler’s position.

In any event, problems at the port of entry are greatly minimized if you are clear about your intentions and the purpose of your travel, if you carry all appropriate documents required for admission, and if you are ready with the contact information of your relatives or friends in the US who can verify your travel intentions. Whether one is subjected to intensive interrogation or not, preparation is key and spells the difference between a smooth or a stress-filled travel.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 721 1963 or visit her website at tancinco.weareph.com/old)

Categories
Updates

Update on Immigration Court Filings during Government Shutdown

Share this:

According to the federal government, during the current lapse in funding
for government operations, each immigration court will be function in
one of three specified categories: open, open to hear detained cases
only or closed. A full list of immigration courts and their status can
be seen online at www.justice.gov/eoir/ICstatus.htm. Definitions of
these status categories are as follows:

Open – as a standard immigration courts that manage primarily detained
cases are designated as open and are accepting filings at the window and
by mail.

Open to hear detained cases only – Filings for detained cases are being
accepted at the window and by mail. Filings related to non-detained
cases at these courts will be accepted at the window and by mail, but
will not be processed further during the lapse in federal funding.

Closed – Filings for non-detained cases are not being accepted at the window and no court staff is available to process mail.