Month: August 2016

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Trump calling PH a ‘terrorist nation’ is absurd

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At a campaign rally in Portland, Maine earlier this month, Presidential candidate Donald Trump discussed his plans to suspend the entry of nationals from terrorist nations into the United States because it’s too difficult to vet terrorists. In his speech, Mr. Trump listed the Philippines as one of the terrorist nations whose immigrants, or in Mr. Trump’s words – “animals”, have been arrested in the United States for terrorism-related offenses. Not only is Mr. Trump’s inclusion of the Philippines offensive considering the historical relationship between the Philippines and the United States, but it sends the wrong message to Filipino immigrants in the US and future immigrants from the Philippines.

The U.S. Department of State designates only three countries as states sponsoring terrorism – Iran, Syria and Sudan – and the Philippines is not one of them.

The United States and the Philippines have strong historical ties as allies. We were allies in the fight against fascism during World War II. During the cold war, the U.S. military bases were present in the Philippines for more than half a century. In the present war on terror, the Philippines entered into an agreement with the U.S. to allow U.S. soldiers to be stationed in some areas in the Philippines to train local forces on counter terror operations. So how can the Philippines be on the list as a terrorist nation? Was Mr. Trump referring to a dangerous terrorist group called Abu Sayyaf in Southern Philippines? This extremist group has been designated as a terrorist group even by the Philippine government together with other nations, like UK, Canada, Australia and the United States, among others. How can a terrorist group not be distinguished from a terrorist nation?

Filipinos have been coming to America for over 100 years. Filipino immigrants are one of the largest foreign-born groups in the United States. Latest census indicates that there are 3.4 million Filipinos (native- and foreign-born) which is the second largest Asian ethnic group in the United States.

Studies show that the median income of Filipino households headed by an immigrant was $82,370 as of 2013, far above the $53,000 of United States-born households.

Filipino Americans (most of whom are voters) have family members who are in the Philippines and a significant number of these Filipinos have pending petitions for their family members. Currently, there is a pending backlog of 400,000 petitions where applicants for visas have been patiently waiting for visa availability. Instead of barring admission based on assumptions, Presidential candidates should consider supporting federal legislative reforms that will eliminate the visa backlogs and create a more efficient immigration system for family members of U.S. citizens and residents. The changes must reflect policies that promote family unification, facilitate immigrant assimilation and boost economic growth.

Lawful Filipino immigrants who have played by the rules and who have contributed to the growth of this nation must be recognized.

In this war on terror, the Philippines and the United States are allies as they have been historically. On the immigration policy of admitting immigrants, both permanent and temporary, the vetting procedures for those who wish to enter the United States is quite extensive. The various levels of security checks that a person undergoes before being issued a temporary and permanent resident visa are comprehensive enough to determine who are threats to national security. If, in fact, the current vetting policy is not enough, the solution is certainly not to bar admission of nationals of a country who have always been an ally of the United States.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)

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Hardship to a Qualifying Relative in Waiver Application

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When USCIS announced the expanded waiver policy on July 29, 2016, several individuals with approved petitions who are unable to adjust inquired on whether they are eligible to apply for this new waiver. Other than an approved family or employment based petition, the eligibility requirements are the presence of a qualifying relative and proof of extreme hardship that this qualifying relative will suffer if the waiver is not approved.

James entered the United States as crewman in 2013. On his last arrival, James decided not to return to his ship and overstayed his authorized stay. His main reason for staying is that his U.S. citizen father suffered a stroke and he had to stay to take care of him. In 2015, the petition filed on behalf of James became current. Unfortunately, James could not adjust his status because of his unlawful presence and that he has no 245i. At the moment, his father is very ill and might only have a few months to live. He also has a one year old U.S. citizen child born out of wedlock. What are the chances that James is going to qualify for the provisional waiver?

The Waiver Application

An application for waiver is not simply an immigration form that one has to accomplish and submit. It requires more than just answering the questions on the form. The law requires that the applicant show a qualifying relative and that the qualifying relatives will suffer extreme hardship should the applicant be ordered removed.

The qualifying relatives should be either a parent or a spouse or both, who are lawful permanent residents or are U.S. citizens. The children who were born in the United States may not be considered as “qualifying relatives” for purposes of the waiver application. It is not possible to be granted a waiver if the individual in deportation or seeking waiver only has U.S. citizen children. It will also be challenging if there is a qualifying U.S. spouse but he does not present circumstances that will support a finding of “extreme” hardship.

Proving Extreme Hardship

The standards for extreme hardship are very high. The hardship should be more than the difficulties that will be experienced by the qualifying relative as a result of the deportation. Several case law including the case of Matter of Cervantes, 22 I&N Dec. 560 had served as guides in determining what constitutes hardship. The factors that can be considered are (1) presence of green card holder or U.S. citizen family ties of the qualifying relative; (2) country conditions in the country of relocation and qualifying relative ties to that country; (3) financial impact of departure from the United States; (4) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation.

In filing the application for waiver of the fraud, the applicant must include all documents and testimonies from individuals to show the varying factors that may be the basis for showing the hardship. Each individual case is different and so are the circumstances of the case. In the case of James, the qualifying relative is his U.S. citizen father. The minor child is not considered a qualifying relative. But despite the fact that the child is not qualifying relative, he may include the hardship of the child in the waiver application. But if the U.S. citizen father passes away, James will no longer be eligible for waiver because he no longer has a qualifying relative. It is best for James to file the waiver application as soon as possible while his parent is still alive. The extreme hardship to the ailing parent is obviously present for purposes of the waiver.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at 1888 930 0808 or visit her website at tancinco.weareph.com/old or facebook.com/tancincolaw)

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Revisiting the “Parole in Place” Policy for Children of WWII Veterans

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When U.S. Citizenship and Immigration Services officials visited the Philippine Consulate in San Francisco in July 2015 for a briefing on the Filipino World War II Veteran Policy, the issue that was of serious concern is about the eligibility of those who are in the United States in unlawful status. It was emphasized that the the FWVP parole is only for those outside the United States. Those who are in the United States must leave the country to get the parole but risk being barred for 3-10 years.

Those who are in the United States in unlawful status may still consider applying for a parole in place under the November 15, 2013 USCIS policy memorandum. However, parole in place has limited applicability.

Parole in Place

The U.S. Citizenship and Immigration Services released a Policy Memorandum titled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S.Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act§ 212(a)(6)(A)(i)”. Pursuant to this Memorandum the children, parents and spouses of active duty members of the US Armed Forces as well as the veterans of the US Armed Forces are entitled to a “parole” status.

Parole status means that those eligible will be considered granted temporary relief from removal and that they will be provided with employment authorization document. The new policy also shall allow immediate relative who are eligible for this parole in place status to adjust their status if they have an approved petition visa petition from their US citizen immediate relative. Parole status does not erase any period of prior unlawful presence.

Usually “parole” status is granted to those who are entering the United States but have no valid visas. The U.S. Citizenship and Immigration Services has the authority to grant parole based on humanitarian or emergency circumstances of the applicant for parole. In this new policy memorandum, the grant of parole status is extended to those who are already in the United States in unlawful status but who have entered the United States without inspection or admission. Those who have entered with a valid visa and later on had the visa expired are not eligible for the parole in place.

Considering that the “parole in place” relief has limited applicability to spouses, children and parents of members and veterans of the military service, only children of war veterans who entered without inspection are entitled to parole. Most Filipinos who enter the United States have in their possession valid nonimmigrant visas. At the time of their entry, they are inspected and admitted. Since they were inspected, even if there are those who failed to maintain lawful status, they still will not be eligible for the parole in place.

The case will be different for children of veterans who crossed the Canadian or the Mexican border. When someone crosses the border without the appropriate visa, these are considered to have entered without admission or inspection (known as “EWIs”). If such is the case, then the “parole in place” may be applied with the U.S. Citizenship and Immigration Services.

Yet. those who are not eligible for parole in place may explore the option of adjustment of status under Section 245(i) since most of the veterans petition for their children were filed in before 2001.

(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, Ste 818, San Francisco CA 94102 and may be reached at 1 888 930 0808 or email at law@tancinco.com or go to their website at tancinco.weareph.com/old or at www.facebook.com/tancincolaw.)

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Avoid Payment Scams: USCIS Does Not Accept Fees By Phone or Email

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Immigrants all over the country are being targeted in scams. Don’t be one of the victims! Scammers may call or email you, pretending to be a government official. They will say that there is a problem with an application or additional information is required to continue the immigration process. They will then ask for personal and sensitive details, and demand payment to fix any problems.

Remember, USCIS officials will never ask for payment over the phone or in an email. If we need payment, we will mail a letter on official stationery requesting payment.

If you receive a scam email or phone call, report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you are not sure if it is a scam, forward the suspicious email to the USCIS Webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate.

Visit the Avoid Scams Initiative at www.uscis.gov/avoid-scams for more information on common scams and other important tips. If you have a question about your immigration record, call customer service at 800-375-5283 or make an InfoPass appointment at http://infopass.uscis.gov.

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Provisional Waiver New Rules to Benefit More Unauthorized Immigrants

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A significant number of unauthorized immigrants who have been petitioned by U.S. citizen or residents’ relatives or employers still find themselves, after many years, still without legal status. Those who are not eligible, among others, include those who entered without inspection, fiancé visa holders with new partners, as well as those who entered with crewman visas. Generally, for those petitioned in family and employment-based preference categories they may adjust status only if they are in lawful status.

In 2013, the provisional waiver rules was released by the U.S. Citizenship and Immigration Services (USCIS) giving immediate relatives of U.S. citizens who are ineligible to adjust an opportunity to obtain a provisional waiver, leave the U.S. and get their immigrant visa at a U.S. Embassy or consulate abroad. Upon their return, they are considered legal residents after having cured their only ground of inadmissibility which is “unlawful presence” through approval of their provisional waiver. Unfortunately, this 2013 provisional waiver is very limited.

On July 29, 2016 USCIS announced that it is expanding the provisional waiver program. There are five changes to the provisional waiver rules.

First, more unauthorized immigrants may now apply for the provisional waiver and will have the opportunity to legalize their stay in the United States. In 2013, only those with immediate relative petitions were eligible for provisional waiver. Now, in 2016, individuals petitioned in any of the family or employment based preference categories may now apply for provisional waiver. The priority dates of these visa petitions must be current which means that there is an available visa and that the beneficiary does not have any other ground of inadmissibility other than being “out of status”. The Second change in the rule is consideration of additional relatives who may be qualifying relatives. For purposes of the extreme hardship requirement to qualifying relatives, the new rule now permits LPRs or green card holder parents and spouses to be considered for purposes of showing extreme hardship.

Thirdly, besides expanding the scope of petitions covered by the provisional waiver, the new rules also allow those in removal proceedings or those with removal orders to apply for provisional waiver.

Fourth, the new rules now clearly states that USCIS may no longer use the “reason to believe” that there are other grounds of inadmissibility to deny the provisional waiver. In the 2013 rules, despite an apparent eligibility for provisional waiver USCIS nevertheless denied waiver applications based on “reason to believe”. This is now eliminated in the 2016 rules.

Lastly, the Department of State “interview schedule” bar has been eliminated. USCIS may now allow applicants to apply for provisional waiver despite having been scheduled for a visa interview prior to 2013. In eliminating this bar, there will be more applicants who may qualify for the provisional waiver.

Those who may eligible may now prepare to file their applications for provisional waivers in time for the effectivity date of the new rule which is August 29, 2016.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)