Month: January 2017

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Updates

Recent changes to the H1B visa program are still favorable

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The U.S. Citizenship and Immigration Services (USCIS) on November 18, 2016 published changes to the H1B program affecting highly skilled workers, and these changes took effect on January 17, 2017. Most of these changes affect those who already have H1B visas and have pending immigrant visa petitions with no available visas.

“Isabela” entered the United States on an H1B visa. She is an engineer who works on different development projects for her U.S. employer. Prior to sixth year H1B expiration, her U.S. employer was able to file a labor certification application and an immigrant visa petition. She has a priority date of 2015 on her immigrant visa petition and a visa is not yet available for Filipino nationals.

The visa bulletin for the month of February 2017 indicates that the visa priority date under the Philippines is 2011 and filing date priority date is 2013. Every year, Isabela’s employer files for a one-year extension of her H1B visa.

She heard about the changes in H1B program that took effect on January 17, 2017. Can she benefit from these changes? If she decides to leave her present employer, will she be able to use the prior approved immigrant visa if this already withdrawn by the employer? What options does she have?

No automatic revocation
In several cases where the employee decides to change employers, the first petitioning employer would take the adverse step of withdrawing the approved petition filed on behalf of an H1B visa holder. And in unfortunate cases, because of the lengthy wait for a priority date to become current, there are times where the petitioner’s business closes for valid reasons resulting in revocation of the immigrant visa petition.

With the recent amendment to the regulations, the USCIS will no longer treat an immigrant visa petition as automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business. This change applies to those whose petitions have been approved for 180 days or more. Hence, for some employers who may have malevolent plans of getting back at their employees for moving to another employer, there will no longer be an automatic revocation.

The USCIS set conditions for the non-automatic revocation to apply. The rule clearly states that as long as the approval has not been revoked for fraud, material misrepresentation, invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including (1) retention of priority dates; (2) job portability under INA §204(j) and (3) extensions of status under AC21 §§ 104(c) and 106(a) and (b).

Three-year extension after sixth year
Considering that immigrant visas are not readily available because of numerical limitations imposed by law, the H1B employee may request for a three-year extension instead of a the one-year increment. The extension request must show proof that the immigrant visa classification is over- subscribed, which is always the case for employment-based petitions (EB3) for nationals of Philippines. However, if the priority date is at least one-year current, the extension will only be for one year.

Besides the above changes in the highly skilled H1B visa program and the employment- based petitions, there are more changes that would benefit H1B visa holders. For Isabela and those similarly situated, the changes above are significantly critical especially to Filipinos who have to bear a lengthy wait before immigrant visas are made available.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)

Categories
Updates

Will an undocumented person be ‘hassled’ on exit if he wants to leave US?

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There is never a day, since post-election 2016, that “immigration” is not mentioned in the daily news. Whether fear is created by uncertainty in the upcoming Trump administration or outright desperation resulting from the absence of an immigration reform law, a significant number whose status had expired have voluntarily departed for their homelands.

An immigrant from the San Francisco Bay Area sent me a letter regarding his friend who has been undocumented and who wants to leave the US:

Dear Atty. Lou:

A person was unfortunate in failing to obtain legal status through an employment petition is now tired of his staying here in the U.S. as an undocumented alien; so he has strongly decided to go home for good. He entered the U.S. as a visitor sometime in year 2000 and is now holding a valid passport in his name.

My questions are:
(1) What are the things he needs to do before or during his exit?
(2) Aside from his valid/unexpired Philippine passport in his name and a one-way plane ticket, are there any other documents he needs to prepare and have at hand to avoid hassle upon exit?
(3) Will he encounter problems/interrogations on his exit if he uses his current valid passport with no visa page?

Those who want to travel back to the Philippines after having made a firm decision to return home after several years of fruitless waiting for an opportunity to legalize, may do so with a valid unexpired Philippine passport. In some circumstances, an undocumented person may be issued a Philippine travel document by a Philippine Consulate General’s Office nearest his place of residence. This happens in cases of emergencies or when the individual is being removed from the country by the Department of Homeland Security. If there is still time to get a Philippine passport, it will still be appropriate to request for one and use it for traveling.

Generally, there is no need to inform the U.S. Citizenship and Immigration Services about the intended trip back to the homeland. The only time the USCIS should be notified is if the individual is availing of a voluntary departure relief in immigration court and has plans of returning to the US at a future time. Otherwise, there is no need to go through USCIS. Just go straight to the airport with the passport and one-way airline ticket.

The more serious concern is whether there will be trouble that may be encountered at the airport with the federal agents. My most common response to this is that there should be no problem because USCIS wants you to leave anyway as you have been in unlawful status and the federal agents will not stop you from doing so. However, there are times that a departing individual will be stopped from traveling at the airport. This happens when the individual is the subject of a pending investigation for a probable criminal offense, is a fugitive from justice or has a validly issued warrant of arrest.

For those who decide to depart but still have future plans of one day returning to the US, it is best to explore their options and not close all the doors to their possible return. Who knows, it may be different after four years.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney and may be reached at law@tancinco.com, tancinco.weareph.com/old , facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808)