Month: March 2017

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Updates

Expedited removal may be expanded under Trump

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Several advocates are distributing “Know Your Rights” literature to those who may possibly be affected by the enhanced enforcement of immigration law brought by Trump’s Executive Orders. One of the rights that one should know is the right to a hearing before an immigration judge. This is a constitutional due process right that may be asserted during apprehension and prior to removal.

There is one particular instance where there is no right to hearing, and that is during an expedited removal. Given the changes brought about by Trump’s Executive Order, will an extension of this process affect those who are present in the United States in unlawful status?

Expedited removal

For 20 years now, the expedited removal has been a process used by the Department of Homeland Security to fast track the removal of certain individuals at the ports of entry, who are in violation of immigration law relating to fraud or are unable to show proper legal documents to prove lawful status.

It is commonly referred to by Filipino travelers as “Airport to Airport” or “A to A,” referring to a case where a passenger at the port of entry in the United States is found inadmissible and is returned the same day of arrival (or the next available flight) to the country of origin. In these cases, the arriving alien is not entitled to a hearing, and a determination of a federal agent is sufficient to send the traveler back to his home country.

Expedited removal has been extended twice. The first expansion of expedited removal is in 2002 when it applied it to those who:

  1. entered the United States by sea, either by boat or other means;
  2. were not admitted or paroled in the United States (entered without inspection) and
  3. have not been continuously present in the United States for at least 2 years.

In 2004, the DHS expanded the application of expedited removal to non-citizens who are encountered within 100 miles of the border, and who entered the United States without inspection less than 14 days before they are encountered by immigration authorities.

Due process right to a hearing

President Trump’s Executive Order instructs the Secretary of Homeland Security to apply expedited removal to the fullest extent of the law. Section 11(c) of the Executive Order states in full: “Pursuant to section 235(b)(1)(A)(iii)(I) of the INA, the Secretary shall take appropriate action to apply, in his sole and un-reviewable discretion, the provisions of section 235(b)(1)(A)(i) and (ii) of the INA to the aliens designated under section 235(b)(1)(A)(iii)(II).”

Applying expedited removal to the fullest extent of the law means putting millions of unauthorized immigrants who have been in the United States for less than 2 years at risk of an expedited removal without a hearing even if apprehended beyond 100 miles from the border.

The DHS rules are still being developed and they will soon be published in the Federal Register. Yet, overzealous immigration officers may put anyone in expedited removal if apprehended and if unable to prove legal status and 2 years of physical presence.

The right to a hearing of those who have been residing in the United States extends even those who are without legal status. The Supreme Court had settled this issue many years ago. Should there be a deprivation of the right to a hearing because of the proposed expanded expedited removal, the Executive Order entitled “Border Security and Immigration Enforcement Improvements,” will be challenged in the judicial courts as being unconstitutional just like the executive order on the travel ban.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco-based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw.)

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Global Pinoy

Renouncing US Citizenship 101

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Lawyer Perfecto Yasay’s nomination as Secretary of Department of Foreign Affairs was recently rejected by the Commission on Appointments on the issue of his U.S. citizenship. Why was his citizenship not revoked contrary to his testimony?

There are basically two methods of losing U.S. citizenship. The first is through voluntary act through a process called expatriation or renunciation. The other is through involuntary act of the naturalized citizen through “denaturalization.”

Voluntary Loss of Citizenship: Expatriation

A U.S.-born citizen or a naturalized U.S. citizen may voluntarily relinquish citizenship by performing certain acts. The following are indication of voluntary relinquishment if made with the intention of relinquishing citizenship:

(1) obtaining naturalization in or taking an oath of allegiance to a foreign state after age 18;

(2) entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S.;

(3) accepting, serving in or performing duties of any office, post or employment of a foreign government;

(4) making a formal renunciation of U.S. citizenship before a diplomatic or consular officer on a Department of State form;

(5) making a formal written renunciation in the United States but only when the U.S is in a state of war.

A certificate approved by the Secretary of State shall constitute a final administrative determination of loss of nationality or citizenship.

Involuntary Loss of Citizenship

Denaturalization is the process of losing citizenship involuntarily through a judicial proceedings and it applies only to those who received citizenship through naturalization. The proceedings may only be initiated by a U.S. Attorney in an action in a state or federal court competent to hear naturalization matters under INA Section 310. The basis for revocation may be the illegal procurement of citizenship or concealment of a material fact or willful misrepresentation.

The naturalized citizen may not file his own denaturalization but may provide information that will justify the revocation of his naturalization.

Presumptive Fraud

One of the grounds for revocation through denaturalization is fraud. Historically, prior to 1994, there were rules on presumptive fraud that may be imputed to the naturalized U.S. citizen as grounds for revocation.

A naturalized U.S. citizen who resumed a residence in the country of previous citizenship within 5 years of naturalization was presumed to have obtained his U.S. citizenship through fraud. The period was reduced to one year in 1986 and eventually this presumptive fraud was eliminated in 1994 through the enactment of the Immigration and Nationality Technical Corrections Act of 1994 (INTCA Public Law 103-416).

The Yasay Case

As a naturalized U.S. citizen, lawyer Yasay went through the voluntary relinquishment of his U.S. citizenship in June 2016. The Certificate of Loss of Nationality issued by the U.S. Department of State is the document that indicates the official loss of U.S. citizenship.

In 1993, prior to the immigration law being amended, he attempted to submit information through his Affidavit that he resumed residence to the Philippines within one year of becoming a naturalized U.S. citizen.

This is presumptive fraud that may result in revocation based on the law existing at that time. Unfortunately, no proof was submitted that the process of denaturalization was ever initiated by the U.S. Attorney General and, therefore, there was no loss of U.S. citizenship.

Yasay could have followed through the process with the U.S. Attorney General and not simply submit his affidavit. Given that he was not denaturalized in 1993, his official loss of U.S. citizenship only occurred in June 2016 when the U.S. Department of State approved his Certificate of Loss of Nationality.

For future politicians who want to serve in the Philippine government and but are U.S. citizens, knowing the exact procedure for giving up U.S. citizenship will preclude any legal barriers to entering the public office. Taking the stand that one never had U.S. citizenship because of one’s unilateral statement of “disqualification” shows either ignorance of the process, or is simply a convenient lie.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

Categories
Global Pinoy

Are Green Card Holders and Visa Holders Safe to Travel With the Rewritten Travel Ban?

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An Executive Order titled Protecting the Nation from Foreign Terrorist Entry into the United States, which is the re-written travel ban, was signed by President Trump on March 6, 2017. The prior travel ban, Executive Order 13769 of January 27, 2017, will be revoked on March 16, 2017.

Travel Ban for Nationals of 6 Countries

For the next 90 days beginning March 6, 2017, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the United States on the effective date of the order, do not currently have a valid visa on the effective date of this order, and did not have a valid visa at 5:00 eastern standard time on January 27, 2017, are not eligible to travel to the United States. The 90-day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals. As a result of this increased information sharing, Iraqi citizens are not affected by the Executive Order.

Green Card Holders and Visa Holders Exempt from the Travel Ban

Clearly, the Executive Order does not apply to certain individuals, such as lawful permanent residents of the United States; foreign nationals admitted to the United States after the effective date of the order. Those who are outside the United States with a document that is valid on the effective date of the order or any date thereafter which permits travel to the United States are also not affected by this executive order.

Normal Immigration Processing to Continue

In the prior travel ban contained in the Executive Order dated January 17, 2017 those entering with valid visas or green card holders were adversely affected. While this re-written travel ban specifically mentions that green card holders are exempt, there is a caveat that applies to all residents and visa holders entering the United States. It states that all normal immigration processing requirements shall continue to apply. This means that all grounds of inadmissibility if they exist will also affect certain green card holders who may have an immigration history of fraud or have criminal history that may render them inadmissible. The same rule applies to non-immigrant visa holders. If there is fraud or misrepresentation in obtaining the visa at the U.S. Embassy abroad, there is a possibility of an expedited removal at the port of entry.

It is important to remind non U.S. citizens that the political climate is very different and that all those attempting to enter the U.S. even if with valid visas must understand the consequences of past actions on their immigration status and their ability to enter the United States.

If no legal grounds exist to deny admission at the port of entry, then there should be no need to worry about traveling. Each case will be assessed by the immigration officer at the port of entry based on the individual’s immigration history. Note that the Department of Homeland Security officers at the Customs and Border Protection have wide discretionary authority whether to allow the entry of non US. citizens. Even if Filipino nationals are not affected by the travel ban, it is important to understand past actions and its impact on present immigration policies.

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

Categories
Updates

Re-written Travel Ban Released March 6, 2017: Green Card Holders and Visa Holders are Exempt

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An Executive Order titled Protecting the Nation from Foreign Terrorist Entry into the United States, which is the re-written travel ban, was signed by President Trump on March 6, 2017. The prior travel ban, Executive order 13769 of January 27, 2017, will be revoked on March 16, 2017.

This travel ban covers on 6 countries and Iraq was taken off the list. Also, green card holders and visas from these 6 countries are not affected by the new travel ban.

Travel Ban for Nationals of 6 Countries

For the next 90 days, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the United States on the effective date of the order, do not currently have a valid visa on the effective date of this order, and did not have a valid visa at 5:00 eastern standard time on January 27, 2017, are not eligible to travel to the United States. The 90-day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals.

Iraq Nationals are Exempt from the Travel Ban

As a result of this increased information sharing, Iraqi citizens are not affected by the Executive Order. Of course, all normal immigration processing requirements continue to apply, including the grounds of inadmissibility that may be applicable.

Green Card Holders and Visa Holders Exempt from the Travel Ban

The Executive Order does not apply to certain individuals, such as lawful permanent residents of the United States; foreign nationals admitted to the United States after the effective date of the order; individuals with a document that is valid on the effective date of the order or any date thereafter which permits travel to the United States; dual nationals when traveling on a passport issued by a non-designated country; foreign nationals traveling on diplomatic, NATO, C-2 for travel to the United Nations, G-1, G-2, G-3, or G-4 visas; and individuals already granted asylum or refugee status in the United States before the effective date of the order.

Visas to Be Issued on Case by Base Basis

DHS and the Department of State have the discretionary authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these six countries into the United States when a national from one of the countries demonstrates that the denial of entry would cause undue hardship, that his or her entry would not pose a threat to national security, and that his or her entry would be in the national interest.

Country by Country Review of Identity and Security Information

In the first 20 days, DHS will perform a global, country-by-country review of the identity and security information that each country provides to the U.S. Government to support U.S. visa and other immigration benefit determinations. Countries will then have 50 days to comply with requests from the U.S. Government to update or improve the quality of the information they provide.

Refugee Program Suspended for 120 Days

Similarly, the Refugee Admissions Program will be temporarily suspended for the next 120 days while DHS and interagency partners review screening procedures to ensure refugees admitted in the future do not pose a security risk to the United States. Upon resumption of the Refugee Admissions Program, refugee admissions to the United States will not exceed 50,000 for fiscal year 2017. The Executive Order does not apply to those refugees who have already been formally scheduled for transit by the State Department. During this 120-day period, similar to the waiver authority for visas, the Secretary of State and Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and would not pose a threat to the security or welfare of the United States.

Uniform Screening for All Immigration Programs

The Department of Homeland Security, in conjunction with the Department of State, the Office of the Director of National Intelligence, and the Department of Justice, will develop uniform screening standards for all immigration programs government-wide as appropriate and in the national interest.

Improving the Entry-Exit System

The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit system for all in-scope travelers entering and departing the United States. As part of a broader set of government actions, the Secretary of State will review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal.

Visa Waiver Program to be Restricted

The Department of State will restrict the Visa Interview Waiver Program and require additional nonimmigrant visa applicants to undergo an in-person interview.

Effective Date

The Executive Order is effective at 12:01 A.M., Eastern Standard Time, on March 16, 2017.

Categories
Updates

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

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Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.

We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

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Source: USCIS

Categories
Global Pinoy

Love of Family Is their Underlying Reason for Staying

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A significant number of Filipino immigrants have thrived and have become productive U.S. citizens or lawful permanent residents. Yet, there are categories of immigrants who, despite having resided in the U.S. for many years could not find ways to obtain legal status. The immigration system is dysfunctional and that there is no pathway to obtaining legal status.

Angela was able to enter the U.S. on an H1B visa but worked only for a year. Her U.S. employer suffered financial setbacks during the recession in 2008 and Angela was laid off from her job. When this happened, she was pregnant. His son who was born in the U.S. with a congenital heart problem that requires regular medical attention. The U.S.citizen father of the child abandoned Angela. She continued to work in the U.S. but only as a caregiver to be able to provide for the support of her child. Angela admits that it was wrong to stay without legal status but her decision to stay was motivated by her desire to ensure her son’s well being. She knows that she will not be able to afford medical treatment in the Philippines. Angela has no history of arrest or any criminal arrest. She takes care of elderly patients. With the new immigration policy, she fears that she will be arrested and be deported. She fears that her son’s health condition will worsen if she is sent back to the Philippines.

Amando is a son of a Filipino World War II veteran. Many Filipino veterans immigrated without family members and lived in isolation. Amando was able to come to the United States on a B2 visa. He took care of his father and was present at his father’s deathbed. Unfortunately, Amando’s B2 visa expired during the time he was taking care of his father. If he returns to the Philippines, it will take more than 10 years before he could return to the United States because of the 3-10 year bar rule. He is taking care now of his aging mother who likewise needs his presence and support just like his late father. Amanda has an approved petition but unfortunately, the visa petition will take more than 15 years for the visa to become available. Amando decided to stay in the United States to care for his mom. With Trump’s policy, Amando is at risk of being arrested and removed.

Angela and Amando are profiles of undocumented immigrants whose future in the United States is uncertain with the current political climate. The Department of Homeland Security stated that they will prioritize for removal those who poses threat to national security and public safety. But the recent DHS rules do not reflect such priority. The 11 million undocumented are at risk of being removed if they are caught by ICE without the proper legal documents to stay. This will include those who have same cases as Angela, and Amando who are neither threat to national security or public safety. Their only intention of continued stay is to be with their families, their U.S. citizen children or parents.

Hopefully, the present administration will desist from stereotyping unauthorized immigrants and look at the lives of these ordinary family-loving people through a different lens.

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