Month: January 2021

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7 Immigration Policy Changes Important to Filipinos

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On his first day in office, President Joe Biden will introduce hundreds of pages of immigration executive orders that will cover most of the policies he pledged to change. With several provisions that are proposed, the more than 4 million Filipinos residing in the United States and their relatives still waiting to migrate are looking forward to major change in policies. Below are 7 immigration related agenda that may have the most impact for Filipinos.

1. The DACA Program

Deferred Action for Childhood Arrivals (DACA) recipients are immigrants who arrived in the United States at a very young age. After several attempts to pass legislation to confer legal status to this category of immigrants and the failure of Congress to pass law, former President Obama issued an Executive Order giving these young immigrants protection from deportation and issuing them employment authorization. When President Trump came into office in 2017, one of his first executive actions was to rescind the DACA program. More than 800,000 DACA recipients were affected by Trump’s rescission of the program. Court litigation ensued and the Supreme Court affirmed the legality of the DACA program. While the U.S. Citizenship and Immigration Services started implementing the DACA protections to initial applicants, it did so only a few months ago leaving thousands of DACA recipients still in limbo about their status.

During this pandemic crisis, more than 200,000 DACA recipients are considered essential workers. Thus, in the Biden proposal, green cards or permanent immigrant visas will be granted to DACA recipients with a pathway to U.S. citizenship in three (3) years.

2. FWVP Program

More than 200,000 Filipinos were conscripted to join the U.S. Armed Forces during World War II (WWII)when the Philippines was still a territory of the United States. Under the War Powers Act, those who fought under the American flag may be entitled to apply for U.S. citizenship. All 66 allied countries nationals who fought side by side with the Americans during WWII were able to obtain U.S. citizenship but not the Filipino Veterans. A 1946 Rescission Act was enacted declassifying their services during WWII as not considered services for purposes of the veteran benefits. Hundreds of thousands of veterans lost their opportunities to apply for U.S. citizenship until 1990, when the Immigration and Nationality Act was enacted allowing belatedly the then 70 and 80 year old veterans to apply for U.S. citizenship.

As soon as they became U.S. citizens, they started filing petitions for their children. As the system in place takes more than 20 years to be current due to the severe backlog, most of the veterans who came in 1990s have already passed away. In the last 5 years, approximately 8,000 veterans are still alive but they have been slowly reducing in numbers. The Obama Administration proposed a Parole program specifically for the families of the veterans to enter the United States and be reunited with their veteran parents who are now of advanced age and sickly. This parole program is the Filipino World War II Veterans Parole Program. This Program only has a 5 year validity until 2021. Last December 2020, the Trump administration issued a notice to rescind the FWVP after 60 days of comment period. President Biden should consider supporting legislation that will give immediate green card status to families of the veterans; or, if not, extend the FWVP program.

3. Family Reunification

Family unity is very important to immigrants, and this applies most specially to Filipino immigrants. Petitioning immediate relatives by U.S. citizens is faster than petitioning adult children and siblings. For those being Petitioned from the Philippines the waiting period for visas to become available for adult married children and siblings of U.S. citizens takes approximately 20 years. And for those who are unmarried adult children, the waiting period is approximately 10 years.

With the pandemic crisis, even those whose visas are available who waited more than 20 years are not being processed at the U.S. Embassy because of the Trump Presidential Orders banning certain immigrants from entering the United States. Visa applications of parents and fiances of U.S. citizens are also put on hold at the U.S. Embassy. President Biden should reform the immigration system by adding more visas to the Family based category to reduce the backlog and make it faster for U.S. citizens or green card holders to petition their family members. Trump’s Presidential Proclamations 10014 and 10052 banning the entry of immigrants and processing of their visas at the U.S. Embassy must be revisited and rescinded.

4. Pathway to Citizenship for Undocumented Immigrants

About 2% of the 11 million undocumented immigrants are unauthorized Filipino immigrants. These are mostly those who fell into the cracks because of the broken immigration system leaving them no option to legalize their status. These unauthorized immigrants are with their family members in the U.S., are hardworking and regularly pay taxes. It is just an opportune time to provide them a pathway to U.S. citizenship.

The Biden administration is introducing the immigration reform bill that will allow unauthorized immigrants an 8 years pathway to citizenship by granting them green cards after 5 five years and allowing them to obtain U.S. citizenship in 3 years. This proposal is the centerfold of the immigration bill introduced by Biden and needs to be passed by Congress to become effective.

5. Public Charge Rule

One of the salient feature of the Trump legacy on immigration is not just curbing illegal immigration but also legal immigration. Deeply disguised as promoting national interest, the public charge rule also known as the wealth test prohibits the grant of immigrant visa if the petitioner or the beneficiary does not have enough financial resources to show that the beneficiary will not rely on public assistance for their subsistence. Restrictive rules were issued making it difficult for US citizens with meager income to be reunited with their families. There is also the 2019 Trump “uninsured ban” rule where those coming to the United States must be able to show proof within 30 days of arrival that they have health care insurance coverage. All these restrictive rules have become barriers to lawful immigration and it is cloaked in a way that benefits the U.S. when in fact it is based on the Trump administration’s assumption that immigrants are a drain to the nation’s resources. This has to change. Most of Filipino immigrant families are educated and bring their skills and knowledge to flourish and succeed in this country. President Biden should rescind the restrictive changes made by the Trump administration related to the public charge rule.

6. Healthcare Workers

During this global pandemic, the Filipino immigrants who are admired most as heroes are our health care workers. We have many Filipino caregivers, physical therapists, medical practitioners and nurses. These essential workers have proven their worth especially during this time of crisis. Current immigration law makes it difficult for most healthcare workers to obtain their immigrant visas. Even when the priority dates for employment-based third preference became current for Philippine nationals, it is usually still subject to long delays of months or years for the healthcare professionals to migrate to the United States. The increasing need for the essential healthcare workers had never been critical and President Biden should consider re-establishing a temporary visa category for nurses like before such as the H1C and H1A visas. This category will make it faster for healthcare workers to enter the United States.

7. Other Employment Based Visas

Philippines was included again in the list of those countries eligible to participate in a temporary working visa program or the H2B. Realizing how it will be in the best interest of the U.S. to make sure that the Filipinos are added to the workforce in the construction of military bases in Guam. This is a positive development. But also, there are Filipinos who are holders of H1B, J and L visas that have been affected by the Presidential Proclamation banning them from entering except those covered by litigation. President Biden should rescind this proclamation and reverse the H1B regulatory changes that Trump released prior to his departure from the White House.

All 7 immigration issues are just a few of the immigration priorities of the Biden Administration. As we maintain our faith in the new administration, we also hope that the Democratic led Congress will find it a priority to pass the Biden’s immigration reform bill for all these provisions to have a meaningful impact on our Filipino immigrants and their families.

(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, or through her firm’s website at www.tancinco.com)

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Updates

What Changes in Immigration Policies are Expected under a new Biden Administration?

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As President Joe Biden takes his oath of office on January 20, 2020, the immigrant community is looking forward to a new vision of the United States as a more welcoming country. After 4 years of cruel and inhumane immigration policies specifically relating to asylum restrictions, interior enforcement and separation of children at the border, a more compassionate administration is taking over. President Biden plans to rescind asylum restrictive policies, reform the parole programs and improve the immigration system, among others.

Below are some of the main focal points of the proposed immigration changes.

Pathway to Citizenship for the 11 Million Unauthorized Immigrants

On his first day of office, President Biden will roll out a comprehensive immigration bill that will provide a pathway to U.S. citizenship for long time residents and those who have been present in the United States without legal status. The bill will cover those immigrants who have been in the United States as of January 1, 2021. The proposed legislation will have an eight (8) year pathway where qualifying immigrants will have temporary status for five(5) years and then they will be granted green cards after meeting certain qualifications which is payment of taxes and background checks among others. After being granted green cards, these immigrants will be able to apply for citizenship three (3) years thereafter.

Deferred Action for Childhood Arrivals (DACA) recipients and those in temporary protected status (TPS) program have a faster route to citizenship. They can apply for a green card immediately. DACA recipients are the children who arrived in the U.S. at a young age and have had no lawful status. With the DACA program, they are protected from being deported. TPS, on the other hand, refers to those immigrants from strife torn countries many of whom are from El Salvador.

100 Days Moratorium on Deportation

President Biden promised a moratorium on deportation during his first 100 days in office. Unlike the prior Trump administration where there was intense interior enforcement that caused fear in the immigration community, a moratorium on deportation will mean a more compassionate approach to dealing with unauthorized immigrants and most especially for those who have strong family ties in the United States and who do not have criminal case histories.

Reversing Trump’s Proclamations

President Biden pledged to move quickly to reverse several Trump proclamations. A memorandum is expected to be issued on his first day that will delay for 60 days the implementation of last minute regulations promulgated in the last days of the Trump presidency.

Three Presidential Proclamations must be reversed immediately. First, the two Presidential Proclamations (10014 and 10052) signed in April 2020 and June 2020 suspended entry of certain immigrants and non-immigrants to the United States following the 2019 Novel Coronavirus Outbreak. With certain exceptions, the latter Proclamation 10052 curtails the ability of H1B visa, H2B visa and L1 visa and certain categories of the J visa from entering the United States. These two proclamations while they were issued during the pandemic to avoid risk to the U.S. labor market are more a restriction on the entry of lawful immigrants especially for parents and adult children of U.S. citizens. Trump extended these two proclamations to be effective until March 31, 2021.

Aside from these Presidential Proclamations, there is also the October 2019 Proclamation referred to as the Uninsured Ban. This proclamation bars entry of immigrants without “approved” health insurance. Obviously, this was meant to curb legal immigration by making it harder for low income immigrants from reuniting with their immediate family members in the US.

The U.S. Court of Appeals upheld the legality of these bans. President Biden must act to immediately reverse this Proclamation. However, despite a firm intent to invalidate Trump’s proclamations, it may not be a smooth process for the Biden administration given prior Court rulings. Reversing proclamations require the government to address the scope of authority and rationale behind the policies.

Bill Must Be Passed in Congress

The Biden Administration has a considerable number of priorities in his first 100 days. With the number of COVID-19 related casualties rising each day, President Biden will surely prioritize the Covid-19 issue and take clear measures to deal with the pandemic crisis. While the proposals and plans to change immigration policies are positive developments contrary to the prior anti-immigration agenda, it may not be easy to implement them without legislation passed in Congress. The hope is that the Democratic controlled Congress led by Speaker Pelosi and Majority Leader Schumer must take active roles in prioritizing the passage of the Biden immigration reform bill.

(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, facebook.com/tancincolaw, or through her firm’s website.)

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Updates

Advisory: Traveling to the Philippines and the U.S.

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Traveling to the Philippines

U.S. citizens including naturalized U.S. citizens who are not dual citizens are banned (among other nationals form other countries) from entering the Philippines. These rule is valid beginning January 5, 2021 until January 31, 2021.

Dual Citizens, Filipinos Passport Holders: Allowed to enter the Philippines but will have to comply with the mandatory 14 days quarantine upon arrival at approved DOH facilities. This rule applies despite negative COVID test.

Traveling to the United States

All airline passengers traveling to the United States, including U.S. citizens and Lawful Permanent Residents (LPRs), to provide proof of a negative COVID-19 viral test or recovery from COVID-19.

Effective January 26, 2021 all airline passengers to the United States ages two years and older must provide either a negative COVID-19 viral test taken within three calendar days of travel or provide a positive test result and documentation from a licensed health care provider or public health official of having recovered from COVID-19 in the 90 days preceding travel.  Passengers must also attest, under penalty of law, to having received a negative qualifying test result or to recovery from COVID-19 and medical clearance to travel.   

Airlines must deny boarding to passengers who do not meet these requirements.   

U.S. citizens in countries where adequate COVID-19 testing is not available or may not be able to satisfy the requirements, should depart immediately or prepare to be unable to return to the United States until such time as they can meet the requirements.

Categories
Updates

Philippines Again Eligible to Participate in H2 Temporary Visa Program

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Filipinos now allowed to apply for H2 Temporary Working Visas

The U.S. Department of Homeland Security (DHS) added back the Philippines as one of the countries eligible to participate in the H2 temporary working visa. This was announced by the U.S. Department of Homeland Security in a notice published today, January 13, 2021. The rule will take effect on January 19, 2021. This announcement was made after the Philippines was prevented from participating in this program for two (2) consecutive years.

While the reason for previously delisting Philippines was increased in overstay rates of Filipinos on H2B visas, the DHS determined this time that adding back Philippines to the list of eligible countries will serve the U.S. interest. Federal agencies such as the U.S. Department of Defense and the U.S. Department of Interior acknowledged that adding the Philippines to the H2B eligible countries will supplement necessary and essential components of the U.S. workforce in Guam and the Commonwealth of the Northern Mariana Islands (CNMI).

The ongoing military construction in Guam, which is part of the U.S. government’s plan to realign American defense forces away from Japan would require a larger workforce than currently available. Military construction is likely to grow significantly in the next five years. In the DHS notice, it is stated that there is an expected influx of military personnel and activity on Guam which will cause a surge in demand in the civil construction sector (i.e. homes, expansion of hospitals, commercial projects, etc.). Hence, adding back the Philippines to the H2B eligible countries serves the U.S. interest.

H2 visas are temporary working visas. There are 2 categories:

  • First, are the H2A visas which are working visas issued to perform agricultural labor or agricultural services of a temporary or seasonal nature. The farm labor includes the raising of livestock, any practices including forestry and lumbering incident to or related to farming operations, handling, planting, packaging to market or carrier for marketing.
  • Second category are the H2B visas which is the visa applied for to work in non-agricultural labor. The type of jobs mostly availed by Filipinos who are temporary and seasonal work in the hotel or construction projects.

Both these agricultural and non-agricultural working visas are temporary in nature and the holder of these visas are expected to return to their homeland after the expiration of the visas.

With this recent positive development, Filipinos may now be eligible to apply for these temporary visas if they are eligible and if they have good faith offers from U.S. employers. Most Filipinos who were issued H2Bs visas in the past were legitimate workers. But there are those who are not fortunate enough and became victims of human trafficking resulting in overstaying of their authorized stay. To prevent this from happening, existing restrictive Philippines policies on recruiters must be strictly enforced to make sure that H2 visa holders are protected from unscrupulous agents or illegitimate employers. Those issued H2 visas must take seriously their responsibilities as temporary workers and to examine only legal options consistent with their visas while in the United States.

(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, or through her website www.tancinco.com)