Month: August 2020

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What USCIS Employees’ Furlough Mean to Visa Applicants

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Beginning August 31, 2020, USCIS will operate with only one-third of its usual staff. According to USA Today, notices were already sent to 13,400 USCIS employees that they will be furloughed as of August 30, 2020.

Most USCIS operation costs are taken from fees that are paid by applicants or petitioner’s. But for this specific year, USCIS claims that because of COVID-19, there were less revenues received resulting in a budget shortfall. The agency was requesting Congress for a $1.2 billion bailout through the coronavirus emergency package which unfortunately was never passed into law. Claiming a shortage in budget, USCIS made a decision to furlough two thirds of its employees until a budget is allocated by Congress.

As a result of this impending furlough, several immigration related petitions and applications will be affected which includes among others:

  1. U.S. citizenship applications;
  2. Permanent residents needing to renew or replace their green cards;
  3. Applicants for employment authorization documents;
  4. DACA applicants seeking renewals of their deferred action and EADS;
  5. U.S. citizens and permanent resident petitioning their families;
  6. Applicants for adjustment of status, and;
  7. Petitions by US employers.

While these applications and petitions may still be filed, the fact that USCIS is operating with a skeletal staff means more delays in the adjudication process. Interviews of visa applicants before immigration offices will also be delayed if not suspended during the furlough.

Senator Patrick Leahy, Vice Chair of the Senate Committee on Appropriations tweeted on August 18, 2020 that USCIS has sufficient funds to avoid furloughs. In his letter to DHS, Senator Leahy said that USCIS has consistently projected that it has a carryover balance even after this fiscal year. He asked USCIS to reconsider its decision to furlough the 13,400 employees.

If Senator Leahy’s statement is accurate, what is then the reason for this furlough? Could it just be the administration’s policy decision to suspend immigration rather than a budget issue?

(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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Spouses & Minor Children of Filipinos or Dual Citizens With No Visas Will Be Denied Entry to the Philippines (Updated)

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SAN FRANCISCO CA- On August 8, 2020, the Bureau of Immigration issued a press release stating that “foreigners (non-Filipinos) who have Filipino spouses and dependents can only enter the Philippines if they have the appropriate visas. This rule is embodied in a July 31, 2020 Inter-agency Task Force (IATF) Resolution 60.

This is a blunt departure from the prior IATF Resolutions 14 & 56 issued on March 20, 2020 and July 21, 2020 that permitted spouses and minor children of Filipinos to enter by showing proof of their relationships.

Commissioner Jaime Morente of the Bureau of Immigration emphasized in their press release that prior to the issuance of said IATF-EID resolution, non-visa required foreign nationals married to Filipinos were indeed allowed to enter the country upon presentation of their marriage certificates and other proof of their matrimonial relationship. “But that is no longer the case with the issuance of this latest IATF-EID resolution . Foreign spouses of Filipinos must now secure entry visas from our Consulates abroad before traveling to the Philippines. Otherwise, they will be denied entry by our immigration officers and sent back to their ports of origin,” Morente warned.

Naturalized U.S. citizens who are dual citizens should make sure that they are aware of these travel restrictions if they have U.S. citizen children and spouses traveling with them to the Philippines. The only way that their immediate family who are not Philippine citizens may travel with them is if they obtain appropriate Philippine visas.

Obtaining Philippine visas for non-Filipino spouses and children may be done through Philippines embassies or consulates. On August 9, 2020, the Philippine Department of Foreign Affairs released a travel advisory stating that “foreign spouses, minor children including with special needs regardless of age, and foreign parents of minor Filipino nationals, including of children with special needs regardless of age, are exempted from the temporary suspension of visa issuance to all foreign nationals.” This means that non-Filipino citizens may now be able to get Philippine visas for purposes of an impending travel to the Philippines. For more information, please contact your nearest Philippine Consulate for information on how to obtain Philippine visas.

(Atty. Lourdes S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the Managing Partner and co-founder of Tancinco Law, P.C. 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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USCIS Fees Increase on October 2020: Citizenship Application Fee up by 80%

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On August 3, 2020, USCIS published a Final Rule that significantly increases the USCIS fee schedule by adjusting fees by a weighted average increase of 20 percent, adding new fees, establishing multiple fees for nonimmigrant worker petitions, and limiting the number of beneficiaries for certain forms.

Notable among the applications affected by the increases are the following:

  • naturalization/citizenship applications (from $640 to 1160)
  • adjustment of status (from $750 to $1,130)
  • employment authorization documents ($410 to $550)
  • N336 appeal from N400 denials from $700 to 1,725).

The complete list of the changes in fees may be found on the government website: www.uscis.gov.
The rule also removes certain fee exemptions, changes fee waiver requirements, alters premium processing time limits, and modifies certain inter-country adoption processing.

The new fees will take effect by October 2, 2020.

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DHS Memorandum Policy on DACA contrary to Supreme Court ruling

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On June 18, 2020, the U.S. Supreme Court handed a decision invalidating the September 2017 Trump’s administration’s rescission of the Deferred Action for Childhood Arrivals (DACA). After one month from the decision, on July 28, 2020, the Department of Homeland Security (DHS) issued a Memorandum affecting more than 640,000 DACA recipients. The Memorandum states that it will begin to wind down legal protections for hundreds of thousands of Deferred Action for Childhood Arrivals (DACA) recipients. While it conducts a review of the program it will reject all initial DACA applications and will limit the protection for those renewing their DACA applications to one year, rather than two years.

1. What Does This New Policy Mean To The DACA Recipients?

Two categories of DACA recipients are affected: first, the current DACA recipients or those who are already receiving the DACA protections from June 2012 to the present; and second: new DACA applicants: those who became eligible beginning September 2017 were it not for Trump’s rescission.

For the first category, current DACA recipients: They will be limited to one year protection and one year employment authorization card instead of the usual 2 years. Furthermore, they will not be allowed to apply for advance parole.

For the second category, new DACA applicants who have been eligible for DACA are now prevented from applying for DACA protections because of the Trump administration’s recent policy memorandum. These are the thousands of young immigrants who have been waiting to qualify and apply for DACA protections.

2. What are the Administration’s reasons for limiting the applicability of DACA?

The reasons are stated in the DHS memorandum released: (1) Congress should have sole authority to resolve whether DACA should continue and (2) concerns about enforcement policy that enforcing the law against those in unlawful status will not be consistently exercised if it favors a group like the DACA population. These are all flimsy excuses that run contrary to vast majority of the Americans who support protection for these young immigrants. And more importantly, these reasons do not justify issuance of this policy that runs contrary to a judicial decision of the Supreme Court and that of the District court of Maryland requiring the USCIS to accept new DACA applications.

3. What steps should present and future DACA recipients take in view of this new policy?

In view of this policy, DACA recipients should be aware of the limitations of their protections which is only one year now, and that they should not allow their DACA protections and employment cards to expire. If their employment cards are expiring the DACA recipients should renew early. And for new DACA applicants, they should hold off to the filing of new applications until this policy is reversed or rescinded. For our readers, please contact your legislators to urge them to pass the The American Dream and Promise Act, a bill if enacted would result in a permanent fix to this issue of our Dreamers by creating a pathway to U.S. citizenship.

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Updates

Expanded Public Charge Rules Suspended During the Pandemic

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On July 29, 2020, U.S. District Court Judge George B. Daniels of Southern District of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Trump’s Administration’s public charge rule during the declared national health emergency in response to the COVID-19 pandemic.

The new public charge rule that took effect in February 2020 makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was intended to discourage immigrants from utilizing government benefits and penalizes them for receipt of financial and medical assistance.

Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the public charge rule and its attendant health insurance proclamation for visa applicants abroad.

The subsequent decisions by the Second Circuit decision in Make the Road New York v. Cucinelli on August 4, 2020, and the Fourth Circuit decision in Casa de Maryland, Inc. v. Trump on August 6, 2020, do not impact this nationwide injunction.

Judge Daniels stated in his decision that there is ample evidence to show that because of the new public charge rule immigrants who do not have the financial capacity to seek medical care are discouraged from seeking testing and treatment for COVID-19, which impedes public efforts to stop the disease from spreading. So any person who does not access health care risks everyone of us from being infected with the coronavirus. It recognizes that every member of communities in this country including immigrants are able to access necessary resources they need to keep themselves healthy and safe.

Impact of the Decision
USCIS stated that for applications and petitions that USCIS adjudicates on or after July 29, 2020, it will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129.

Moreover, applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.

USCIS also indicated that it will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.

Availing of the Expanded Public Benefits Without Immigration Consequences
The Administration’s new public charge rule often referred to as the wealth test was enacted and made effective in February 2020 expanded the list of programs that will be considered as public benefits. So with this ruling the expansion of the list of benefits will not apply like access to publicly provided medical programs, food and housing assistance. Just like anyone of us, we all need to be able to access life-saving healthcare, food assistance and other essential services to protect our families without fear of being separated from our families or being denied visas in the future.