Month: July 2021

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Updates

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

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SUMMARY: The U.S. Citizenship Act of 2021 (H.R. 1177 and S.348) introduced in Congress establishes a path to citizenship for certain undocumented individuals. The bill also replaces the term alien with noncitizen in the immigration statutes and addresses other related issues.

Specifically, the bill establishes a new status of lawful prospective immigrant. This status shall be available to an applying noncitizen who meets certain requirements, including being continually present in the United States from January 1, 2021, and passing background checks. After at least five years with this status, an eligible noncitizen may apply for and receive permanent resident status.

The bill also provides permanent resident status to certain applying noncitizens, specifically for eligible noncitizens who (1) entered the United States as a minor, (2) were eligible for temporary protected status or deferred enforced departure on January 1, 2017, or (3) worked a certain amount of agricultural labor in the five years prior to applying.

STATUS:  The U.S. Citizenship Act of 2021 (H.R. 1177 and S.348) is still pending and 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 July 19, 2021. Previous updates on the U.S. Citizenship Act of 2021 may be viewed here.)

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Updates

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

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TRAVELING TO THE PHILIPPINES

Entry restrictions remain in place. All arriving passengers remain subject to guidelines set by the Philippines’ Inter-Agency Task Force Against Emerging Infectious Diseases (IATF) in Resolution Nos. 97, 98,103,  113 and 114.

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).

Quarantine Information:

Individuals granted permission to enter by the Philippine authorities must undergo a 14-day quarantine and must have a confirmed booking for the first ten days at a hotel accredited by the Philippine Tourism and Health Agencies while awaiting their COVID-19 test results. The remaining four days will be a home quarantine under the local government unit of destination.   U.S. citizens must stay at the booked hotel until they receive a Philippine Bureau of Quarantine medical certificate.  For more information, see IATF Resolution No. 114 on the Philippine Official Gazette website.

Per IATF Resolution 123-C, all arriving individuals fully vaccinated in the Philippines regardless of travel history, and those vaccinated abroad who stayed exclusively in “Green” countries/jurisdictions (see IATF Resolution 124-B) in the past fourteen days immediately preceding arrival, shall be required to undergo a seven (7) –day facility-based quarantine upon arrival, with the date of arrival being the first day. Note that the United States is not included as one of the green countries.

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.    

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Updates

Biden’s Strategy On Promoting Naturalization

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In the past administration, a significant number of non-citizens were apprehensive about filing applications for naturalization because of restrictive immigration policies.  Even naturalized U.S. citizens were threatened with de-naturalization or having their U.S. citizenship taken away from them through a Trump denaturalization program that was then established within the U.S. Citizenship and Immigration Services.

In a 180 degree change of direction the current Biden-Harris Administration is determined to promote naturalization among those eligible to file for naturalization and become U.S. citizens. It has taken steps to eliminate barriers to citizenship and restore faith in our nation’s legal immigration system.

On July 2, 2021, the USCIS released its Interagency Strategy for Promoting Naturalization to promote naturalization through citizenship education and awareness and by building capacity and expanding partnerships with government agencies and community based organizations.

As part of this interagency strategy, a Naturalization Working Group was established by the U.S. Department of Homeland Security (DHS), Education (ED), Health and Human Services (HHS), State (DOS), Labor (DOL), Housing and Urban Development (HUD), Defense (DOD), Justice (DOJ), Veterans Affairs (VA), Agriculture (USDA) and the Social Security Administration (SSA).

Naturalization Working Group goals include:

  • Raising awareness of the importance of citizenship;
  • Promoting civic integration and inclusion;
  • Providing immigrants with opportunities and tools to become fully engaged citizens;
  • Building community capacity to prepare immigrants for citizenship;
  • Eliminating sources of fear and other barriers that prevent individuals from accessing available naturalization services; and
  • Advancing and ensuring equity throughout the citizenship and naturalization processes, including on the basis of race, disability, language access, national origin, gender, gender identity and sexual orientation, and providing support to traditionally underserved communities.

This is a welcome development as a means of empowering the immigrants and restoring faith in the immigration system. While many will be encouraged to apply for naturalization as a result of this program, it will still be prudent for those with long immigration history  to take diligent steps to get their cases assessed for any possible consequences of filing for U.S. citizenship. Examples are those with prior criminal convictions, undisclosed prior marriages, continuous interrupted physical presence among other issues, who must consult with their trusted professional legal counsel before proceeding to file citizenship.

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Updates

U.S. Consul General Kelly’s Update on Processing of K1 Fiance Visas

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In a recently released video of the U.S. Embassy in Manila, Consul General Kimberly Kelly, announced on July 10, 2021, that K1 visa interviews will slowly take place. She stated that the consular office is now in a position to interview a limited number of K1 visa applicants.

According to Consul General Kelly, they will schedule interviews for K1 visa applicants who had appointments that were canceled in March 2020. After these cases are completed, the consular officers at the U.S. Embassy will begin to interview cases in the order that their office received the applications from the National Visa Center (NVC).

K1 visa applicants who are not yet called for an interview are urged to be patient. There is no need to contact the U.S. Embassy unless there is an emergency that will warrant an expedited interview.

The following cases will be considered for an expedited interview:

  • If your child, who is applying for a K-2 visa, will turn 21 years old before December 31, 2021.
  • If your K-2 follow-to-join applicants will lose follow-to-join eligibility from the time thethe principal applicant was issued a K-1 visa.
  • If you have a U.S. citizen child who will travel with you.
  • The petitioner is an active-duty U.S. military member with pending deployment orders, pending Permanent Change of Station (PCS) orders,.
  • The petitioner has documented medical issues and is currently in the Philippines and unable to travel to the United States without assistance from the K-1 applicant.

Any other cases that do not fall within the category above will have to wait until the U.S. Embassy calls them for an interview. 

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Updates

Latest Court Ruling Affects First Time DACA Applicants

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On July 16, 2021, a federal court Judge Andrew Hanen ordered the U.S. Citizenship and Immigration Services (USCIS) to stop the processing and approval of new DACA applications. What is the impact of this decision on DACA recipients and those with pending DACA applications?

Jose turned 18 years old in January 2021.  When Jose was 5 years old, he was brought to the United States by his Aunt and his immigration status was never legalized. He practically grew up in the United States and completed his high school education and dreams, one day, of becoming a physician.

When President Biden was elected, Jose filed for protection under the Deferred Action for Childhood Arrivals. This is the first time that he applied for DACA.  The U.S. Citizenship and Immigration Services acknowledged receiving his application but no action has been taken so far.  On Friday, July 16, 2021, Jose learned that the Federal Court Judge ruled against new DACA applicants. What are the chances that he will be granted employment authorization and protection under DACA?

The DACA Program

In 2012 President Obama created a policy called Deferred Action for Childhood Arrivals (DACA), calling for deferred action for certain undocumented young people who came to the U.S. as children. Applications under the program began on August 15, 2012. More than 800,000 DACA eligible individuals filed for protection and employment authorization under this DACA program.

Legal Challenges

DACA has always been the subject of legal challenges where certain States question the legality of the DACA program. When former President Trump took office, he immediately issued an order rescinding DACA. Several lawsuits were filed questioning the rescission of the DACA program.

On June 18, 2020, in Department of Homeland Security v. Regents of University of California,the U.S. Supreme Court struck down the Trump administration’s termination of the DACA program and ruled that the termination of DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). While it ruled against its termination, the Court did not rule on whether or not DACA itself is lawful, but merely held that the Trump administration did not follow the law when it tried to terminate the program. In Casa de Maryland v. U.S. Department of Homeland Security,  a federal judge in the U.S. District Court of Maryland ordered the Department of Homeland Security (DHS) to reinstate the DACA program to its 2017, pre-termination status and to start accepting new applications.

On July 16, 2021, Judge Andrew Hanen, a federal judge in the State of Texas, issued a ruling declaring DACA as unlawful since, according to his decision, the Department of Homeland Security has no authority to create DACA and to prevent immigration officials from enforcing the removal provisions of the law.

Impact of the Decision: First Time DACA Applicants Adversely Affected

Jose’s application as illustrated above will be put on hold as a result of the recent decision.

Those who have received prior DACA protections and employment authorizations are not affected by the decision. Unfortunately, first time DACA applications will be placed on hold by the U.S. Citizenship and Immigration Services which means that no new DACA applications will be approved at this time. The federal Court decision blocked USCIS from approving any new DACA cases. Hence, all individuals who have submitted DACA initial applications (those that never had DACA and are applying for the first time) and have not received an approval from USCIS will have their application held. This applies to all initial cases that were not approved prior to July 16, 2021.

What about individuals who already had prior DACA for the first time and are renewing? If an applicant was recently granted DACA for the first time, his/her DACA will remain valid and may be renewed.

Future of DACA

President Biden vowed to appeal the federal court decision. But while this is on appeal, the new DACA applicant’s fate will be put on hold. The more permanent solution is for Congress to pass the American Dream and Promise Act which bill is waiting to be passed.

President Obama emphasized the importance of passing legislation to protect our DREAMers.  On his Twitter posting, he said that “For more than nine years, DREAMers have watched courts and politicians debate whether they’ll be allowed to stay in the only country many of them have ever known, it’s long past time for Congress to act and give them the protection and certainty they deserve.”

Let us continue to strongly support our DREAMers, by calling and urging our representatives in Congress to pass the American Dream and Promise Act. Undeniably, our young DREAMers deserve better.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through her website www.tancinco.com)