Month: January 2020

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2020 U.S. Immigration Outlook for Filipino Immigrants

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2020 is a Presidential election year. Whether the United States will have a new or a re-elected President, immigrants and their families will be facing major changes in immigration policies. Let’s examine and determine the prospects of 8 major immigration policy changes that may affect our Filipino immigrants.

The Filipino World War II Veterans Parole Program (FWVP)

The FWVP program was created in June 2016 in recognition of the extraordinary contributions and sacrifices of Filipino veterans during WWII. This program allowed their family members to join the veterans or their widows in the U.S. while their visa petition is waiting for visa availability. After 3 years, several hundreds of family members were allowed in on parole under the FWVP program. As part of the administration policy to eliminate parole programs, the USCIS announced in August 2019 that it will terminate the FWVP. Advocacy groups like the Asian American Advancing Justice, FilVetRep, and the Bayanihan Equity Center, among others, have been working hard to preserve the program. This 2020, unless the administration changes its mind about terminating the program, FWVP program will end after USCIS issuance of its final rules.

Increased USCIS Fees

In November 2019, USCIS announced that it will increase fees on petitions and applications. Among the many applications that are going to be affected are (1) Adjustment of Status application, an increase from $1,225 to $2,195; (2) DACA fees will increase from $495 to $765, an overall increase of 55 percent; (3) Naturalization application will increase by 83 percent, raising the fee from $640 to $1,170. Aside from the increase in fees, USCIS is eliminating fee waivers for naturalization, adjustment of status, green card replacements and renewal and employment authorization. The increase will take effect this 2020 and only after USCIS releases its final regulations.

Backlog in Family Petitions

As of November 2019, there are 291,392 approved visa petitions on behalf of Filipino nationals filed by their US citizens or green card holder relatives, awaiting visa availability with the National Visa Center. The backlog is still severe and there is still lengthy wait for visa availability in certain preference petitions. For Filipinos with petitions under the F3 and F4 visa category, the waiting period is more or less 21 years and for those whose petitions are F1 or F2B the waiting period is approximately 11 years. There are bills (RELIEF Act, S.2603 and H.R. 5327) pending before the 116th Congress which if passed will increase visa numbers and eliminate backlogs. Until these bills are passed into law, expect decades of waiting for certain petitions on behalf of Filipino nationals.

H1B Visa

On January 9, 2020, USCIS released its regulations on the registration system for H1B visa petitions. Instead of filing a full petition for a foreign national employee, the U.S. employer must complete a registration process that requires basic information about the H1B employer and the employee being petitioned. USCIS will open registration period from March 1 through March 20, 2020. Only those selected by USCIS lottery system will be able to file H1B petitions to meet the 65,000 cap.

Public Charge

Under the law, a visa applicant will not be allowed to enter the United States if the government believes that they are likely to become public charge or reliant on government assistance. In 2019, the USCIS issued a new definition of public charge rule to include those who receive either cash or non-cash benefits like housing or health care, from the government for more than 12 months during the 3 year period. The implementation of this public charge rule is suspended because of court litigation filed by several States and advocacy groups challenging the legality of the rule. The Supreme Court is expected to rule on this case this 2020. If the public charge rule takes effect, the legal impact will be on low income legal immigrants petitioning their relatives.

Deferred Action on Childhood Arrivals (DACA)

Deferred Action on Childhood Arrivals or DACA program was created in 2012 to grant young immigrants deferred status and employment authorization. In 2017, Trump announced that it was ending DACA. This resulted in several lawsuits filed against the administration challenging the decision to terminate DACA. The case was heard by the Supreme Court in November 2019 and a decision is expected anytime before June 2020. In the meantime, DACA recipients are allowed to renew their DACA status and employment authorization.

REAL ID

Beginning October 1,2020, federal agencies including Department of Homeland Security (DHS) and Transportation Security Administration (TSA) will only accept state issued driver’s licenses that are REAL ID compliant. This means that the state licensing agency must issue REAL IDs to those with valid identification and legal status. Those who are still in unauthorized status may not be issued READ ID compliant driver’s licenses and identification that will allow them to access federal offices or travel domestically through commercial airlines.

H2B Visa

In January 2019, nationals from the Philippines were banned from receiving H2B temporary working visas for one year. As of this writing, there is no update yet from the USCIS if in 2020, the Philippines will be allowed to become beneficiaries of new H2B visas.

These 8 immigration policies are just among the many policies that are anticipated to affect our Filipino immigrant community. The enforcement of immigration law has consistently been the highest priority of the Trump administration resulting in hundreds of thousands of ICE arrest since he took oath as U.S. president. After a decade, we still have not seen a major overhaul and change in immigration law. Hopefully, this 2020 decade, our leaders will finally pass a more humane and sensible immigration reform law; a more compassionate, relevant and rational one that will replace the dysfunctional immigration system we have right now.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, 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)

Categories
Updates

What’s in the Horizon for Filipino Officials and Individuals Subject to the U.S. Travel Ban?

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On December 20, 2019, President Trump signed a budget law known as the “Further Consolidated Appropriations Act of 2020” (Public Law 116-94). This law includes a provision that implements the Global Magnitsky Act which is a legislation that relates to significant steps that U.S. may take to protect and promote human rights and combat corruption around the world. Part of the sanctions under this Act is a U.S. travel ban of those individuals identified to have violated human rights .

The matter of applying this sanction on certain Philippine government officials responsible for the detention of Philippine Senator Leila De Lima is not mentioned specifically in the budget law signed by President Trump. However, it is found in the Senate Committee Report by reference stating that the Global Magnitsky Act provision banning from entry to the U.S. applies to Philippine government officials responsible for the detention of Senator De Lima. Committee Reports accompany most bills that become law and are sources of determining legislative intent. It can be inferred that the congressional intent is to include the officials responsible for the detention of Senator De Lima and apply the sanctions.

To expound further on the congressional intent, Senate passed S.Res 142 on January 8, 2020, “A resolution condemning the Government of the Philippines for its continued detention of Senator Leila De Lima, calling for her immediate release, and for other purposes”. Among the provisions of the resolution is the call to apply the sanctions of the Global Magnitsky Act to Philippine government officials responsible for the arrest and prolonged detention of Senator De Lima. Until resolutions are incorporated into a bill that becomes law, a resolution merely expresses the opinion of the Senate. They have no force of law.

But with the Committee Report and now the S.Res 142, it is more likely the sanctions of the Global Magnitsky Act will apply to government officials of the Philippines responsible for the arrest and detention of Senator De Lima. And if they apply, what is next?

Within 30 days from the date of the signing of the Consolidated Appropriations Act of 2020, the names of individuals that are included in the sanctions of the Global Magnitsky Act which includes a ban from entering the United States will be reported to the U.S. Congress and will be posted on the State Department website. This means those on the list will have visa applications denied, or be refused entry even if they have prior issued visas.

There will be no arbitrary process for inclusion in the travel ban list. The State Department should have “credible” information that government officials are involved in human rights violations or in the arrest and detention of Senator De Lima. The agency that decides who will be on the travel ban list is the Department of State. Assuming a government official and his/her family members are on the list, will this travel ban be a permanent bar?

Unless the grounds for denial of visas are based on espionage, sabotage or attempt to overthrow the U.S. government, most grounds of inadmissibility are subject to waivers. These include prior criminal convictions, public charge grounds, misrepresentation, fraud and prior removal. And if waivers are approved, the visa applicant may be approved for the visa and be allowed to enter the United States.

The same waiver may apply to those subject to the travel ban under the Global Magnitsky Act. The budget law specifically mentions that the Secretary of State, “may waive the application of paragraph (1) if the Secretary determines that the waiver would serve a compelling national interest or that the circumstances which caused the individual to be ineligible have changed sufficiently”. So if there is a compelling national interest or if the circumstances have changed, the travel ban will be lifted and visas may be issued again.

Since this will affect mostly government officials, there is also an exception to the application of the sanctions. The budget law states that the ban will not apply if the entry to the U.S. would further U.S. law enforcement objectives or is necessary to permit the U.S. to fulfill its obligations under the United Nations Headquarters Agreement and as long as it will not derogate U.S. obligations under applicable international organizations.

Given the above provisions, we can conclude that the travel bans are not absolute. To propose counter sanctions by requiring Philippines visas to U.S. citizens, including former Filipino citizens who are not dual citizens, is certainly within the exercise of prerogatives by the Philippine government. However, it may be fair game to ask if doing so is beneficial to Philippine interests considering that the majority of US citizen travelers to the Philippines would most likely be former Filipino citizens themselves and/or may discourage investments from US citizens or entities due to visa requirements.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, 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)