Month: April 2020

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Updates

What Trump’s Latest Proclamation Suspending Immigration Means to Our Families?

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President Trump issued a proclamation “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” This proclamation became effective on April 23, 2020 and will expire 60 days from its effective date and may be continued.

Coverage and Exemptions

Those severely affected are those outside the United States who are immigrant applicants. It does not affect those adjusting status in the United States. There are several exemptions to the Proclamation, among these categories are:

  1. Green card holders or immigrant visa holders at the time of the proclamation. If an individual is already in possession of an immigrant visa or green card before the Proclamation, they can still travel back to the United States.
  2. Those with temporary travel documents can still enter the U.S. Examples are individuals in possession of transportation letters issued by the U.S. Embassy, re-entry permits and advance parole issued by the U.S. Citizenship and Immigration Services (USCIS)
  3. Health care workers, professionals and other essential medical workers alleviating the effects of COVID-19 are exempt
  4. Temporary visa holders such as tourists, student visa holders and working visa holders. They can still enter the U.S. if their visas are still valid.
  5. Minor children (below 21 years old) and spouses of U.S. citizens may still continue to be processed for their immigrant visas and travel to the U.S.

Families of Immigrants Severely Affected

There are three categories of family members adversely impacted by this Proclamation.

First on the list are the parents of U.S. citizens and preference categories beneficiaries of petitions filed by green card holders and U.S. citizens.

The parents of U.S. citizens should have been considered as immediate relatives of U.S. citizens and should have been included in the exemption. The goal of the proclamation as stated is to protect U.S. workers, but how are parents of U.S. citizens a threat or in competition with U.S. workers?On the contrary ,should they not be immigrating right now to allow them to assist in caring for their grandchildren especially during this time of COVID-19 pandemic? U.S. citizens parents, with minor children who are still in school, are shuffling between engaging in essential work (such as the health care workers)or work from home and taking care of their children’s online schooling. The presence of a grandparent or any additional member of the family will be beneficial to a typical immigrant household.

Second category of those affected are families of U.S. citizens who are adults, married or unmarried, their siblings and families of lawful permanent residents who are spouses, minor or adult unmarried children. This group of visa applicants will have their visa processing outside the U.S.suspended as a result of this Proclamation. But take note that these are the relatives who have waited for many years, some for more than 2 decades, to be reunited with their families. Considering the lengthy delay before visas become available, the majority of the petitioners are now elderly citizens. It is these elderly U.S. citizens and lawful permanent residents who actually need the company of their adult children during this COVID-19 epidemic. Depriving them family reunification at a critical time when they are needed most is certainly detrimental given the importance of family to the immigrants.

The third and last category of immigrants affected are the minor children who are aging out. The Child Status Protection Act (CSPA) may protect certain minor children from aging out but several categories of aging out children may not qualify under the CSPA. With the Proclamation suspending immigration of those in the preference categories, minor children who aged out will be rendered ineligible as minor children or derivative minor children. There will be no protection from them while the Proclamation is in effect resulting in prolonged separation from their lawful permanent resident parents.

Trump has always targeted these families of immigrants and U.S. citizens in his proposals to limit immigration. He has found a ‘convenient’ time to implement his intended policy in the guise of protecting U.S. workers. If it is indeed to protect U.S. workers, why are there more family based immigrants affected over employment based workers who are already in the United States? There is no valuable national interest in suspending family reunification. We are in critical times, the priorities should be focused on directly addressing the COVID-19 crisis and not in weakening our family support system.

(Atty. Lourdes S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1-888-930-0808)

 

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Updates

Bad News for Immigrants Seeking to Enter the U.S.: Trump Issues Executive Order Today

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President Trump issued today a proclamation “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.”

This proclamation is effective at 11:59 pm (ET) on April 23, 2020. The proclamation will expire 60 days from its effective date and may be continued.

Per the proclamation, the suspension and limitation on entry pursuant to section 1 of this proclamation applies to individuals who are green card “applicants” and who:

  1. are outside the United States on the effective date of this proclamation;
  2. do not have an immigrant visa that is valid on the effective date of this proclamation; and
  3. do not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.

The proclamation includes several exemptions:

  1. spouses and minor children of American citizens;
  2. health care workers (eg. doctors, nurses);
  3. EB5 foreign investors;
  4. people with already-approved valid green cards.

According to President Trump, the Executive Order is purportedly aimed to protect U.S. workers who lost their jobs as a result of the coronavirus pandemic, and the restrictions could later be amended or extended if necessary.

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Updates

Trump to Sign Executive Order to Suspend Immigration for 60 Days

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On Monday night, Trump tweeted that he will be signing an Executive Order that will temporarily suspend immigration to the United States. As of Tuesday, April 21, 2020, Trump said in his press conference that those affected are those seeking immigrant visas or green cards including spouses of American citizens and those entering based on employment based immigrant visas. It will not block from entering students, tourists or those on temporary work visas.

The actual Executive Order has not been released or signed as of this writing and we cannot provide you the details of this new rule. Our office will be monitoring this situation and will update you as quickly as possible on this development.

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Updates

U.S. Taxpayer with Non-resident Spouse/Child Not Eligible to Receive Stimulus Check

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The U.S. Congress enacted a $2 trillion economic stimulus package on March 27 that allowed most Americans to receive stimulus payments of up to $1,200, as a way to put money directly in the pockets of families struggling to manage the economic fallout of the coronavirus pandemic.

Several families have recently noticed that their stimulus payments have already been deposited directly to their account. But not every taxpayer is eligible to receive a stimulus payment. First, eligible individuals must have social security numbers and not tax identification numbers (ITIN). But even those taxpayers with social security numbers are still not receiving their stimulus checks because of limited eligibility. What could have resulted in the denial of their stimulus payments?

Jointly Filing With Non-resident or Immigrant with No Social Security Number

The Coronavirus Aid, Relief and Economic Security (CARES)Act strictly requires social security numbers before a stimulus check is deposited to the taxpayers bank account. However, if the eligible taxpayer with a social security number filed a joint tax return with a spouse who only has an Individual Tax Identification Number (ITIN) or filed a tax return with a qualifying dependent child who only has ITIN, no stimulus check will be given by the government. Adopted children and military families are exempt from this rule.

To illustrate how this rule applies: A U.S. citizen filed a joint tax return with his spouse who only has ITIN , no stimulus payment will be granted. The same will apply if there are dependent children who only have ITIN.

Another example, generally, non-U.S. citizens with social security numbers like H1B visa holders are eligible for the stimulus payments. But if these H1B visa holders have H-4 spouses and minor children with only ITIN,and their tax returns show or declare these H4s as dependents, no stimulus payment will be received.

Since it is the CARES Act rule to exclude mixed families with either unauthorized or non-immigrant visa holders with ITIN only, millions of U.S. citizens will not receive their stimulus payments considering the number of unauthorized immigrants in the United States.

(Atty. Lourdes S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw, or at 1-888-930-0808)

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Updates

Tancinco Law FAQS on the Stimulus Payment

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1.  Who are the U.S. Taxpayers Eligible to Receive Stimulus Payments?

  • U.S. Citizens, Lawful Permanent Residents
    Generally, U.S. citizens and green card holders have social security numbers and if they meet the income threshold, they are eligible to receive stimulus checks.
  • “Resident Aliens” with Social Security Numbers
    These are the non U.S. citizens and non green card holders who qualify as resident aliens.

2. Who qualifies as a resident alien?

Non-U.S. citizens are considered nonresident aliens unless they meet one of two tests set forth by the IRS: the green card test or the substantial presence test.

I. Green Card Test: Lawful permanent residents of the United States are considered resident aliens if they were lawful permanent residents at any time during the calendar year. This is known as the “green card” test. Lawful permanent residents continue to have U.S. resident status under this test unless they voluntarily renounce and abandon their status in writing to the USCIS, their immigrant status is administratively terminated by the USCIS, or their immigrant status is judicially terminated by a U.S. federal court.

II. Substantial Presence Test: To meet this test, an individual must have been physically present in the United States for a designated minimum threshold period outlined by the IRS. One must be physically present in the United States (U.S.) on at least: (1)31 days during the current year, and (2) 183 days during the 3-year period that includes the current year and the 2 years immediately before that, counting:

  • All the days individual was present in the current year, and
  • 1/3 of the days you were present in the first year before the current year, and
  • 1/6 of the days you were present in the second year before the current year.

Not all non-immigrants can meet the substantial presence test. Those allowed to meet this test are H-1B, L1, O1 and TN. And the following individuals are exempt and may not meet this test: F, J, M or Q visa holders.

3. What Is Income Threshold to Receive a Stimulus Payment?

  • Individuals with adjusted gross income of $99,000 or less
  • Head of Households with adjusted gross income of $112,500
  • Married Joint Filers with adjusted gross income of $150,000

4. How much is the Stimulus Payment?

I. Full Payment

A one time payment of $1200 for Individuals with adjusted gross income up to $75,000 or,
A one time payment of $2400 for Married Joint Filers with adjusted gross income up to $150,000

Individuals can also receive an additional $500 for each eligible child under the age of 17.

II. Reduced payment
Reduced Stimulus payment based on the following calculation:

For individuals whose gross income is more than $75,000 and not exceeding $99,000

The stimulus payment is reduced by $5 for every $100 of adjusted gross income (AGI) above $75,000 for individuals, $112,500 for heads of households, and $150,000 for married joint filers.
The amount is completely phased-out for single tax filers with adjusted gross incomes exceeding $99,000, $146,500 for head of household filers with one child, and $198,000 for joint filers with no children.

5. Where does the IRS base the adjusted gross income for purposes of calculating the stimulus payment?

The stimulus payment is to be automatically advanced to eligible individuals in 2020 based on their 2019 federal income tax return. For eligible individuals who did not file a 2019 return, the rebate is to be automatically advanced based on 2018 tax return information.

6. May non-taxpayers who are SSI recipients receive stimulus payments?

Individuals receiving Supplemental Security Income or SSI will receive the stimulus payment in the same way they receive their monthly checks either through direct deposit, debit card or paper check SSI recipients with qualifying dependents must register these dependents with the IRS portal, otherwise no need to register to receive the stimulus payment.

Other individuals who will also receive their stimulus payments automatically include those receiving Social Security retirement, disability (SSDI), or survivor benefits, as well as Railroad Retirement benefits.

(This FAQ is prepared by Atty. Lourdes S. Tancinco, an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw, or at 1-888-930-0808)

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Updates

Tancinco Law COVID-19 Critical Resource List

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Guide to Important Links Related to Immigration & Critical COVID-19 Resources
(Updated 04/17/2020)

U.S. Department of Homeland Security
https://www.dhs.gov/coronavirus/coronavirus-news-updates

U.S. Citizenship and Immigration Services
https://www.uscis.gov/about-us/uscis-response-covid-19

U.S. Immigration and Customs Enforcement
https://www.ice.gov/coronavirus

U.S. Embassy Manila
https://ph.usembassy.gov/covid-19-information/

U.S. Department of Justice: Immigration Courts
https://www.justice.gov/eoir/eoir-operational-status-during-coronavirus-pandemic

Critical Resources for Foreign Students/Schools
https://www.nafsa.org/about

Primary Federal Government for General Information
https://www.coronavirus.gov/

Critical Information from Different U.S.Agencies in Response to COVID-19
https://www.usa.gov/coronavirus

Centers for Disease Control and Prevention Information
https://www.cdc.gov/coronavirus

U.S. Department of Labor
https://www.dol.gov/coronavirus

U.S. Department of Labor, Unemployment Insurance Information
https://www.dol.gov/coronavirus/unemployment-insurance

U.S. Department of Labor, Family Leave Information
https://www.dol.gov/agencies/whd/fmla/pandemic

U.S. Small Business Administration (SBA)
https://www.sba.gov/disaster-assistance/coronavirus-covid-19

U.S. Treasury Information on the CARES Act
https://home.treasury.gov/policy-issues/cares

U.S. Internal Revenue Services (IRS)
https://www.irs.gov/coronavirus/economic-impact-payments

 

Filipino Community Resources

Bayanihan Equity Center, San Francisco CA
https://www.sfbec.org/
(415)255-2347

Filipino Bar Association of Northern California
http://fbanc.org/
(415) 484 2209 EDD Form Assistance

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Updates

Can Visas be Denied on Public Charge Grounds if an Applicant Receives Stimulus Check?

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COVID-19 pandemic has affected the economy severely and millions have lost their jobs as a result. Those who have lost their jobs are not just U.S. citizens but also green card holders, DACA recipients or those who are lawfully in the United States in valid non-immigrant status such as the H1B visa holders.

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, a $2 trillion dollar economic recovery package. The package offers relief to state and local governments, individuals, small and large businesses, and hospitals affected by the 2019 novel coronavirus (COVID-19) pandemic.

Those who lost their jobs may apply for unemployment benefits from the States and, on top of that, those eligible may also apply for a $600/week supplemental unemployment benefit. There is also a Stimulus check – a one-time check of $1,200 for those whose income is 75k or lower.

Those who apply for unemployment benefits and a one-time Stimulus check of $1,200 would require the applicant to have a social security number and must not have a dependent family member who does not have a social security number.

For those who are lawfully in the United States in non-immigrant status and have valid social security number, will they risk denial of immigrant visa if they get this stimulus check or the supplemental unemployment benefit from the Federal government?

This is for those who will be applying in the future for green card status. Public charge as defined in the statute as “[a]ny Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits),” “Supplemental Nutrition Assistance Program (SNAP),” “Section 8 Housing Assistance under the Housing Choice Voucher Program,” “Section 8 Project-Based Rental Assistance,” “Medicaid,” or “Public Housing under section 9 of the U.S. Housing Act of 1937.” At first glance, it would seem that CARES Act payments fall within the “Federal, State, local, or tribal cash assistance for income maintenance” public benefit category.

The recovery rebates are structured as automatically advanced tax credits to be disbursed by the Treasury Department. The DHS final rule on inadmissibility on public charge grounds is clear that tax credits are not taken into account for the purpose of a public charge determination.

The same rule applies to unemployment benefits. Unemployment insurance payments are not generally taken into consideration by the U.S. Department of Homeland Security (DHS) for purposes of making a public charge determination. As DHS explained in its final rule on inadmissibility on public charge grounds, “DHS would not consider federal and state retirement, Social Security retirement benefits, Social Security Disability, post secondary education, and unemployment benefits as public benefits under the public charge inadmissibility determination as these are considered to be earned benefits through the person’s employment and specific tax deductions.”

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Updates

Green Card Holders Unable to Timely Return to the U.S.

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We have heard of some clients who are unable to return to the U.S. after a temporary visit abroad – for example to the Philippines – due to COVID-19 related reasons. Either (1) they cannot get a flight back to the U.S. or (2) their health situation makes them vulnerable to contracting the corona virus or (3) they already have the corona virus. What will be the impact of their extended stay outside to the U.S. to their status as green card holders?

Let’s look at 3 scenarios:

First, the green card holder has been in the Philippines for more than 6 months. What will happen when s/he finally returns to the U.S?

If you are returning after more than 6 months, there will be the usual strict scrutiny by the CBP officer because you are considered to be seeking admission. Meaning to say, your green card is not just sufficient for entry, they will have to look whether or not there are reasons to deny your entry. But if you mention that the COVID-19 circumstances had prevented you from returning, more likely than not you will have no problem entering the U.S.

Second, the green card holder has been outside the U.S. for more than 12 months.

If you are a green card holder, you should not stay outside the United States for more than 1 year. So what happens if you stayed for more than a year, you will be deemed to have abandoned your residence. You need to obtain the SB-1 or returning resident visa from the U.S. Embassy and explain that your reason for untimely return is a COVID-19 related reason; more likely than not, you will be granted a returning resident visa as long as there is no proof that you have abandoned your resident status in the U.S. If you are in a rush to return and you flew in the U.S. without the returning resident visa, you will be asked by CBP to explain your absence for one year and they may allow you in anyway if it is a COVID-19 related reason.

Third, the re-entry permit of the green card holder already expired.

The same as scenario 2. If you have COVID-19 related reasons, you can return to the U.S. by obtaining a returning resident visa, or flying to the U.S. without it and explaining to the CBP officer that COVID-19 related reason had prevented you from returning. Again, you should show that you have not abandoned your U.S. residence even if you stayed abroad during the validity of your re-entry permit and beyond.

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Updates

Department of State’s Update on Visas for Medical Professionals

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The following is a March 26, 2020 update from the U.S. Department of State.

“We encourage medical professionals with an approved U.S. non-immigrant or immigrant visa petition (I-129, I-140, or similar) or a certificate of eligibility in an approved exchange visitor program (DS-2019), particularly those working to treat or mitigate the effects of COVID-19, to review the website of their nearest embassy or consulate for procedures to request a visa appointment.

For those foreign medical professionals already in the United States:
J-1 Alien Physicians (medical residents) may consult with their program sponsor, ECFMG, to extend their programs in the United States. Generally, a J-1 program for a foreign medical resident can be extended one year at a time for up to seven years.

Note that the expiration date on a U.S. visa does not determine how long one can be in the United States. The way to confirm one’s required departure date is here: https://i94.cbp.dhs.gov/I94/#/home.

Those who need to extend their stay or adjust their visa status must apply with USCIS. Their website is here: https://www.uscis.gov/visit-united-states/extend-your-stay”