Month: June 2021

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Updates

Trump’s “No Insurance, No Green Card” Rule Now Revoked by Biden

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Under the Trump Proclamation 9945 announced in October 2019, immigrant visa applicants had to prove they were covered by approved insurance, such as employer-sponsored plans, unsubsidized plans or family members’ plans, or “possess[ed] the financial resources” to pay for any reasonably foreseeable medical costs before they may granted their immigrant visas or green cards. Trump’s belief was that the cost of immigrant health care would be pushed onto American taxpayers and drive hospitals into insolvency.

The American Immigration Lawyers Association filed a lawsuit against the U.S. Department of Homeland Security, the U.S. Department of State and other federal agencies on behalf of a proposed class of affected individuals and the nonprofit Latino Network, claiming that Trump’s rule was unconstitutional and that the administration sidestepped a notice-and-comment period required under administrative law.

On May 14, 2021, President Biden issued a proclamation lifting former President Donald Trump’s Proclamation 9945 and said his administration can expand access to quality affordable health care without barring the entry of non-citizens who seek to immigrate lawfully but lack the means to pay for health plans. Biden revoked the rule saying that Trump’s policy was at odds with an executive order of his own from February aimed at “restoring faith” in the immigration system.

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Updates

International Entrepreneur (IE) Parole Program to Continue under Biden Administration

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In 2016, the Obama Administration created the International Entrepreneur Parole (IEP) Program. It was established with the purpose of granting parole status to an applicant who is an “entrepreneur” of a start-up who takes an active role in the operations and growth of the business. The program was set to begin in July 2017, but the Trump administration pushed the start date to the following year, citing an executive order looking to crack down on parole abuse. The Trump administration then through a proposed rule published on May 29, 2018, suggested eliminating the program, saying the policy didn’t adequately protect U.S. workers and that parole wasn’t an appropriate vehicle to attract or retain international entrepreneurs.

On May 10, 2021, the U.S. Department of Homeland Security announced that the IEP program will no longer be revoked but in fact will continue to implement the program pursuant to existing regulations contained in 8 CFR 212.19.

Under this program the entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application. Unlike an investors visa where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.”

There are 3 alternative ways to prove this:

  • first, that the business has significant U.S. capital investment of $345,000 or from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities;
  • second, the business received government funding of grants totaling $100,000 or more; and,
  • third, any reliable and compelling evidence that will prove significant public benefit to the United States.

If an IE Parole application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

More than 50 percent of start-ups in the United States with a $1 billion valuation were founded by at least one immigrant. This IE Parole program is significantly beneficial to U.S. public interest considering that the United States is a popular destination for start-up founders, but many other countries (including Canada, the United Kingdom, China, Japan, Israel, Germany, Australia, and New Zealand) are competing to entice entrepreneurs to their shores.

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Updates

Change in State Department Policy: Child Born Abroad to Same-Sex Married Couple is a U.S. Citizen

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In a recent development relating to transmission of U.S. citizenship to children born abroad to same sex couples, the U.S. Department of State said that it will recognize birthright citizenship for children born abroad to married parents, as long as one parent is an American citizen. This is a policy change that makes it easier for same-sex couples to pass citizenship on to their children born overseas.

This change in policy was prompted by a series of federal court cases where the court sided with same-sex couples, many of whom married and started families abroad before the U.S. legalized same-sex marriage.

One of the cases filed was that of Laura Fieldne. Laura, a U.S. citizen, is married to her wife, Maria, a Spanish citizen.  Maria gave birth to their older daughter, L.F.,  in Spain with the help of an anonymous sperm donor.  Laura, being a U.S. citizen, reported the birth of LF abroad as a U.S. citizen but the registration was denied, stating that the qualifying US citizen parent does not have a biological relationship with the child. In 2020, Laura filed a federal lawsuit against the U.S. Department of State policy as being discriminatory and unconstitutional.

Under the Immigration and Nationality Act, while married couples can give birthright citizenship to their children born abroad if either parent is eligible to do so, children born “out of wedlock” must be biologically related to the eligible citizen parent. The State Department’s policy before was to treat babies born through assisted reproductive technology to same-sex couples as out of wedlock. This policy is certainly unconstitutional disregarding the dignity and equality of the marriages of same-sex couples. How can both same sex couples be blood-related to the child?

The change in policy is a welcome development to the immigrant and LGBTQ community. State Department spokesperson Ned Price said in a press statement that children born abroad to married parents can now have birthright citizenship if they have a genetic or gestational tie to at least one of their parents and if at least one of their parents is an American citizen.

“This updated interpretation and application of the [Immigration and Nationality Act] takes into account the realities of modern families and advances in [assisted reproductive technology] from when the Act was enacted in 1952,” Price said.

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Updates

Updates on Processing of Visas at the U.S. Embassy

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According to the U.S. Department of State, the U.S. Embassies and consular offices are using a tiered approach to prioritizing immigrant visa applications based on the category of immigrant visa, as they resume and expand visa services. Where possible, consular officers are scheduling some appointments within all of these four priority tiers every month: 

  • Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government) 
  • Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas 
  • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad 
  • Tier Four: All other immigrant visas, including employment preference and diversity visas 

The U.S. Embassy in Manila published on their website that routine visa operational services remain suspended. Based on their announcement, it appears that the consular section is currently processing Tiers One and Tiers Two. In the U.S. Embassy website, it describes what visas are being prioritized.

Immigrant Visa (IV): The Embassy is currently processing limited numbers of the following:

  • Cases for applicants previously interviewed and refused under INA Section 221(g) for additional document submission or processing.
  • Interviews for any case with a derivative applicant who is turning 21 years old and/or risks losing eligibility as a child or derivative.
  • As capacity allows: Interviews for IR-1, CR-1, IW-1, IR-2, CR-2, IR-3, IH-3, IR-4, K-1/2, IH-4, IR-5, SB-1, and I-131A applicants whose cases are already at Post for processing.
  • Visa interviews for all other immigrant visa categories remain suspended until local conditions and capacity allows.

Nonimmigrant Visa (NIV): The Embassy continues to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission-critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students and exchange visitors (F-1, M-1, and J-1) and temporary employment visas (H-1B, H-2B, and L nonimmigrants). Routine visa appointments and processing for B1/B2 (Business/Tourist) remain suspended with the exception of interview waiver cases.

The U.S. Embassy in Manila is processing those visa applicants who were previously interviewed and  refused under INA Section 221g. Yet, it also mentions that only a limited number of visa interviews are being conducted. So for preference categories, visa interviews remain suspended. Also, those who are just awaiting for interviews and have no prior interviews will have to be patient and wait until the local COVID-19 situation in the Philippines improves.

Immediate relatives of U.S. citizens are being interviewed “as capacity allows”. This includes minor children, spouses and parents of U.S. citizens. The same rule applies to fiancé visa applicants and returning resident visas even if their visa applications are already in the U.S. Embassy.

Categories
Updates

U.S. Citizens with Expired Passports may travel back to the United States

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On May 21, 2021, the Customs and Border Protection and the U.S. Department of States announced that U.S. citizens will be able to return to the United States on an expired U.S. passport through December 31, 2021, if they:

  • are a U.S. citizen.
  • are currently abroad seeking to return to the United States.
  • are flying directly to the United States, a U.S. territory, or have only short-term transit (connecting flight) through a foreign country on their return to the United States or to a U.S. territory.
  • have an expired passport that was originally valid for 10 years (or 5 years if the individual was 15 years of age or under when the passport was issued).
  • have an expired passport that is undamaged and in their possession.

Please note that an expired U.S. passport may not be used to travel from the United States to an international destination for any duration longer than an airport connection.

DOS recommends U.S. citizens delay any travel abroad and reminds that return to the United States requires proof of a negative COVID-19 test result, taken within 72 hours of their flight’s departure.

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Updates

Filipino Veterans Family Reunification Act Reintroduced in May 2021

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On May 19, 2021, Senators Mazie K. Hirono (D-Hawaii), Lisa Murkowski (R-Alaska), Dan Sullivan (R-Alaska), and Representatives Ed Case (D-Hawaii) and Don Young (R-Alaska) reintroduced the Filipino Veterans Family Reunification Act (S.1708), legislation that would speed up the visa process for children of Filipino World War II veterans.

Immigrant visa backlogs had resulted in separation of aging Filipino World War II veterans with their sons and daughters for several years. Many veterans passed away waiting for the visas of their children to become available. 

The Filipino Veterans Family Reunification Act, if passed into law, would provide a permanent solution by amending the Immigration and Nationality Act to exempt from the  numerical limits the sons and daughters of Filipino World War II veterans who were naturalized under the 1990 law or other specified laws. Essentially, green cards or immigrant visas will be made available to them after approval and processing of their visa petitions. This proposed legislation will not only assist our veterans during their twilight years but also it is considered a recognition of their critical services during World War II. 

This bill is scheduled for mark up on committee level in July 2021 and more Republican co-sponsors are needed to support this bill.  We urge community members to contact their legislators to support the passage of this bill.

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Updates

Updates on Biden’s U.S. Citizenship Act of 2021

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The U.S. Citizenship Act of 2021 (H.R. 1177 and S.348) introduced in Congress by the Democrats on February 18 and 22, 2021 is currently referred to various committees including  the Judiciary Committee for hearing and consideration. No significant action has been taken on this Biden bill since its introduction.

There are two stand-alone bills that were approved by the U.S. House of Representatives in the month of March 2021. These are the American Dream and Promise Act and the Farm Workforce Modernization Act. Both of the provisions of these bills are also included in the broader U.S. Citizenship Act of 2021.

(This update is current as of June 7, 2021. Previous updates on the U.S. Citizenship Act of 2021 may be viewed here.)

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Featured

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

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Traveling to the Philippines

According to the guidance issued by the Philippines Bureau of Immigration (BI), individuals in the following categories should be allowed to enter the Philippines, subject to the maximum capacity of inbound passengers at the port and date of entry, until further notice:

  1. Foreign nationals with valid and existing visas at the time of entry;
  2. Foreign nationals allowed entry under the Balikbayan Program (RA6788), provided they are nationals from non-visa-required countries under Executive Order 408:
    • Former Filipino citizens, together with their foreign spouses and children, regardless of age, who are travelling with the former Filipino citizens; and
    • Filipino citizens’ spouses and children, regardless of age, who are travelling with the Filipino citizen.
  3. Foreign nationals who are holders of valid and existing Special Resident Retiree’s Visas (SRRV), may be allowed entry without the need for an Entry Exemption Document (EED).
  4. Foreign nationals who are holders of valid and existing 9(a) or Temporary Visitor’s Visas, provided they present, upon arrival, an EED issued by the Department of Foreign Affairs (DFA).

Except for Section 9(e) visa holders who are covered by different testing and quarantine protocols, the entry of all other foreign nationals shall be subject to the following conditions:

  • With pre-booked accommodation for at least ten nights in a quarantine hotel/facility; and
  • Subject to COVID-19 testing at the quarantine hotel/facility on the seventh day from date of arrival.

Arriving passengers who are fully vaccinated in the Philippines shall be required to undergo a seven-day facility-based quarantine upon arrival, with the day of arrival being the first day.

A fully vaccinated individual must carry his or her vaccination card, which must be verified prior to departure, as far as practicable. This document must be presented to the dedicated Bureau of Quarantine (BOQ) representative for verification at the Department of Transportation One-Stop-Shop (OSS) upon arrival in the Philippines.

Traveling to the United States

All airline passengers traveling to the United States, including U.S. citizens and Lawful Permanent Residents (LPRs), are required 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.    

(This update is current as of June 4, 2021.)