Month: May 2015

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Global Pinoy

Dual Citizen Voluntarily Relinquishing U.S. Citizenship

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Immigrants who naturalize to become U.S. citizens enjoy rights and privileges not available to non-US citizens living in the United States. Many Filipinos, after having naturalized as US citizens, subsequently take an oath of allegiance as Filipino citizens making them dual citizens.

Mark is a dual citizen of the United States and the Philippines. He decided to retire in the Philippines and occasionally visits his relatives in the United States during the holidays. Mark became interested in the Philippine political process and would like to run for a Congressional position in his province. He wants to know what steps to take to show proof that he has relinquished his U.S. citizenship.

Acts of Expatriation

Section 349 of Immigration and Nationality Act enumerates certain actions, if performed voluntarily and with intent to relinquish U.S. nationality, would result in loss of US citizenship. Among these acts described are: (1) obtaining naturalization or taking a formal oath of allegiance in a country other than the U.S., (2) serving in the military as an officer in another country; (3) accepting office or employment with a foreign government, or (4) making a formal renunciation of nationality before a diplomatic or consular officer of the United States.

Among the enumerated acts described above, the formal renunciation is clearly indicative of an official loss of citizenship. If this step is taken, the U.S. Department of State will issue the former U.S. citizen a Certificate of Loss of Nationality (CLN).

Loss of citizenship can only result from the citizen’s voluntary actions. While the act of taking an oath as a dual citizen under Republic Act 9225 (Philippine Citizenship Retention and Re-acquisition Act) mentioned is an act of expatriation, it will not automatically result in the loss of U.S. citizenship if the “intent to renounce the U.S. citizenship” is not clear or made voluntarily. There is a rebuttable presumption that the intent to give up U.S. citizenship is not present in case a person becomes a dual citizen, served in the armed forces in the country where the U.S. is not at war with or accept a non-policy position with the government.

In the case of Mark, if he decides to renounce his U.S. citizenship, he can take a more definitive step of doing so. He can make an appointment with American Citizenship Services of the U.S. Embassy and formally renounce his U.S. citizenship in the presence of a consular officer. The process is not as easy a taking the oath of renunciation. There will be a filing fee of $450, an interview to determine the act is voluntarily made and the surrendering of the U.S. passport or naturalization certificate. The issuance of a Certificate of Loss of Citizenship is the official act recognizing the loss of U.S. citizenship for all legal intents and purposes.

Once the renunciation is final, it is irreversible. Those who have renounced must understand that it will not have any effect on outstanding tax obligations, payment of financial obligations like child support, nor will it allow them to escape probable criminal prosecutions. Whatever the motivation is for renunciation, given the many privileges of being a dual citizen, it must be undertaken only after serious thought and deliberation taking into account the long-term consequences.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com, facebook/tancincolaw, tancinco.weareph.com/old or at (02)721 1963)

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Updates

USCIS Temporarily Suspends Premium Processing for H-1B Extension of Stay Petitions

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On May 26, 2015, USCIS temporarily suspended premium processing for all H-1B extension of stay petitions. This suspension will remain in place until July 27, 2015. During this period, petitioners will not be able to file Form I-907, the Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of stay.

USCIS will, however, continue to process all premium processing requests submitted prior to May 26, 2015. Premium processing fees will be refunded if the petition filed their H-1B petition prior to May 26 using the premium processing service and USCIS did not act on the case within the 15-day period.

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Updates

USCIS to Only Accept New Version of Form I-907

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Beginning Monday June 1, 2015, USCIS will only accept the new version of Form I-907, the Request for Premium Processing Service. This new version is dated 01/29/2015. This date is printed at the bottom of each page of the form. All requests submitted on previous versions of Form I-907 will be rejected on or after June 1.

USCIS issued this new version of Form I-907 on May 1, 2015. They continue to accept old versions of the form during the transition period, which ends on May 31, 2015.

Categories
Updates

USCIS Publishes Revised Employment Authorization Form

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USCIS has recently published a revised Form I-765, the Application for Employment Authorization. This revised form is dated 02/13/15. It can be downloaded and reviewed online at the USCIS forms page at http://www.uscis.gov/forms.

This revised Form I-765 includes the eligibility category (c)(26) for certain H-4 dependent spouses to apply for employment authorization. Individuals filing under the new H-4 rule should provide the receipt number of their H-1B principal spouse’s most recent Form I-797 Notice of Approval for Form I-129.

Categories
Immigration Round Table

Future DAPA Applicants Anxiously Await Appeals Court Decision

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The U.S. Citizenship and Immigration Services set May 19, 2015 as the date for accepting applications for Obama’s program known as Deferred Action for Parents Accountability (DAPA). But on February 16, 2015, District Judge Andrew Hanen issued an injunction that resulted in the suspension of the implementation of Obama’s executive actions. A National Day of Action was held by various immigration advocate groups on May 19, 2015 to protest the blocked DAPA/DACA extension programs.

Joey has been residing in the United States since 2005. He entered the United States with a H1B professional working visa. In 2008, his employed closed their business due to financial losses. Joey was terminated. Despite his termination Joey did not depart to the Philippines and continued to stay unlawfully in the United States. He has a U.S. citizen developmentally disabled child who is receiving regular medical check-ups. Joey also has a second U.S. citizen child who is 18 years old.

Joey is one of thousands of undocumented immigrants who has U.S. citizen children and is waiting for the implementation of the DAPA. He has heard about the injunction issued by Judge Hanen and of the appeal that was filed by the Obama administration. Joey wants to know if DAPA will ever be implemented. He meets all the eligibility requirements to apply for the DAPA relief, like thousands of probable DAPA applicants. Joey remains apprehensive whether he will ever benefit from the temporary DAPA relief.

The States’ Lawsuit

In the case of Texas v. United States of America, a lawsuit was filed by 26 States against President Obama’s executive actions. The plaintiffs questioned the constitutionality of the executive actions as it bypassed the U.S. Congress on an immigration matter. Federal District Judge Andrew Hanen of Brownsville, Texas. Judge Hanen was a nominee of George W. Bush assigned at the United States District Court for the Southern District of Texas. He is a known conservative who has been a critic of President Obama’s immigration policies. So when the decision was reached to suspend the implementation of the program, immigrant advocates were not surprised. His decision did not even address the constitutionality of the executive actions.

Right now the case is on appeal with the United States Court of Appeals for the 5th District. Arguments were heard on April 17, 2015 and amicus briefs were submitted to the appeals court. A decision may be rendered anytime.

In the meantime, thousands of undocumented Filipinos, potentially eligible for the DAPA and who are similarly situated as Joey, are anxious about this prolong litigation. The alternative request of the government counsel, if the injunction is not fully lifted, is to continue to partially lift it and implement the DAPA program in States that are not plaintiffs in this case.

Many experts agree that the February 16, 2015 District Court Judge’s injunction may still be reversed and that hopefully, the appeals court will order full implementation of the Obama’s executive actions. It will just be a matter of time.

(Atty. Lourdes Tancinco is a partner at Tancinco Law Offices, a San Francisco CA based firm and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw or at 1 888 930 0808)

Categories
Updates

USCIS Temporarily Suspends Premium Processing for H-1B Extension of Stay Requests

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Beginning May 26, 2015, USCIS will temporarily suspend premium processing for all petitions requesting H-1B extensions of stay. This suspension of premium processing will stay in effect until July 27, 2015.

During this time period, petitioners will not be able to file Form I-907, the Request for Premium Processing, for a Form I-129, the Petition for a Nonimmigrant Worker, request of extension of stay for an H-1B nonimmigrant. Premium processing for H-1B extension of stay requests submitted prior to May 26, 2015 will be accepted.

Categories
Global Pinoy

The Unfinished Mission of the Filipino World War II Veterans

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On May 14, 2015 the United States Court of Appeals for the Ninth Circuit sent notification that the 2011 veterans lawsuit of De Fernandez et al. v. Department of Veterans Affairs (VA) is finally submitted for their decision. In this case, the issue to be decided is jurisdiction and the constitutionality of VA’s process for qualifying veterans to the Filipino Veterans Equity Compensation.

Romeo De Fernandez is the named plaintiff together with other veterans. He is a 96 years old Filipino and a naturalized U.S. citizen who is anxiously waiting for recognition as a U.S. World War II veteran. During the infamous Bataan Death March, he walked with thousands other Filipinos and Americans suffering the atrocities of the Japanese Imperial Army. As a war veteran, Romeo served as Commander of the American Legion, awarded the American Defense Service Medal with one bronze star, the Asiatic Pacific Theatre Medal with one bronze star, the Distinguished Unit Badge with two oak leaf clusters, the Philippine Defense Ribbon with one bronze star, and the Philippine Liberation Ribbon with one bronze star. He is also receiving veteran’s compensation for his service-connected disability from the VA. As a war veteran, he took advantage of becoming a U.S. citizen after proving that his service under the U.S. Armed Forces in the Far East (USAFFE). Romeo immigrated to the United States in 1994 but decided to retire in the Philippines in 2012 because of his health.

In 2009, when President Obama passed the Filipino Veterans Compensation Equity Act (FVEC), thousands of Filipino veterans benefitted from the one time compensation of $15,000 for U.S. citizens and $9,000 for non-U.S. citizens. The latest figures released by the VA on the number of claims are: 45,991 received, 18,000 approved, 25,027 denials and 4,557 on appeal. Note that because of the process of qualifying veterans, there were more denials than approvals of claims. Romeo is one of those who denied FVEC benefits based on the fact that his name is not on the National Personnel Record Center’s list of veterans. He filed this lawsuit against the VA.

Due to his age, Romeo’s health is steadily deteriorating. A few weeks back I decided to visit him in his home in Dagupan. My goal was to give him the news about an impending decision on his case. Travelling from San Francisco, California to Dagupan to visit him brought mixed feelings of joy and fear, as I did not know what to expect. When we reached his place, he was lying in a hospital bed and could hardly open his eyes. However, he managed to whisper to me a question about his case. He asked in a feeble voice, “ano pa ba ang dapat kong gawin? (What else must I do?)” Stunned with nothing sensible to say, I said, “Just wait Mr. De Fernandez.” Together with thousand of veterans, Romeo spent most of his lifetime proving himself as a veteran but to no avail. This lawsuit is his last ditch effort to uphold his and that of his colleagues’ dignity. It represents the unfinished mission left for our Filipino War veterans, to fight for their rightful recognition.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com , or at 1 888 930 0808 (US) or 02 721 1963 (Phil) or visit her website at tancinco.weareph.com/old)

Categories
Updates

ICE to Take Actions to Enhance and Ensure Safety at Family Residential Centers

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This week, U.S. Immigration and Customs Enforcement (ICE) announced it would take a series of actions to enhance and ensure safety at its family residential centers.

“While we routinely review and evaluate our facilities to ensure that we are providing the level of care required by our Family Residential Standards, we understand the unique and sensitive nature of detaining families and we are committed to maintaining the optimal level of care,” said ICE Director Sarah R. Saldaña. “The measures ICE is announcing reaffirm that understanding and our commitment to ensuring all individuals in our custody are held and treated in a safe, secure, and humane manner.”

ICE will take the following steps:

It will create a new advisory committee
A senior ICE official has been given the responsibility to coordinate and review family residential facility policies.
ICE will conduct a series of engagements with stakeholders to listen to and discuss concerns regarding family residential centers.
ICE will investigate ways to further enhance conditions at family residential centers to support the well being of detained families.
ICE will implement a review process for any families detained beyond 90 days, and every 60 days thereafter.

Categories
Immigration Round Table

June 2015 Visa Bulletin Indicates Further Retrogression

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The month of June 2015 is not a good month for those who are waiting for their visas to be current under the first preference family based category and the employment based petition, third preference category. The first preference category that refers to a petition by a U.S. citizen on behalf of his/her adult single children retrogressed further from 2005 to 2000. And for employment based petitions third preference, the priority dates moved back from 2014 in April, to 2007 in May and now 2005 for the month of June.

One of those affected by this retrogression sent the following letter:

Dear Atty. Lou,

I have an approved employment based (EB3) immigrant visa petition with a priority date of June 15, 2012. The visa processing has been completed and the papers were ready to be sent to to US Embassy in Manila. I was just waiting for my packet 4 and appointment letter. Unfortunately, I was caught up by the retrogression as indicated by the May 2015 visa bulletin.  I thought this is just temporary setback. But I noticed on the June 2015 visa bulletin that the EB3 retrogressed further to 2005 . My question is, why did the Department of State moved the priority dates so fast then retrogress it abruptly? I already paid my visa fee bills because this is the agreement with my employer and it’s a big amount of money for me. Will this retrogression be like the one that happened last 2005/2006 or is it just temporary? I am looking for answers and I really hope you can help me Atty. Tancinco through this difficult time. Thank you!

Anonymous

Dear Anonymous,

Retrogression of priority dates means further delay in the issuance of visas which may take months to several years. The reason there is retrogression is that the number of available visas in a given year are not enough for the number of approved petitions. It was explained by the Department of State representative that for Filipino nationals, there was not enough demand on the visa numbers under the 3rd preference for the last 3 years. So they decided to advance the priority dates beginning last year until April 2015. However, they have to retrogress again because when the priority dates were advanced, suddenly thousands of applicants applied again resulting in the shortage of numerical visas available. I believe that the thousands of applicants who suddenly showed up were after all in the pipeline like you waiting for the priority dates to be current. Definitely, this is going to be temporary but we cannot speculate when they can advance again. This depends on the number of approved visa applicants seeking to obtain the limited number of visas each year.

For those who are documentary qualified and have paid their visas, you just have to wait until the priority date of your petition becomes current again. Once it becomes current, you will be called for the interview. And for those who have applications for adjustment of status filed prior to the retrogression, these applications will remain in pending status until the priority dates become current again. They will not be returned to the applicant just because there is retrogression.

(Atty. Lourdes Santos Tancinco is a partner at Tancinco Law Offices and may be reached at law@tancinco.com or at 1-888-930-0808, facebook.com/tancincolaw or visit her website at tancinco.weareph.com/old)