Month: August 2024

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Updates

Disappointments amid Hopes

Disappointments amid Hopes
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Dear TLAW Subscribers,

With much anticipation, we welcomed the June 18, 2024 announcement of President Biden’s Parole in Place (PIP) program that was scheduled to be implemented on August 19, 2024. USCIS began accepting applications on the same day the regulations were released. Although the application forms were available by Friday, August 16, 2024, official filings started on Monday, August 19.

As I dug into the details of the federal register notice, frustration began to set in. After combing through the 94-page document, it became clear that this PIP program was specifically designed to benefit those who entered the U.S. without inspection. Unfortunately, it did not extend to nonimmigrants who overstayed their visas, nor to crewmembers and transit visa holders who are present in the U.S. and married to U.S. citizens.

For many non-immigrant Filipinos in unlawful status (unable to adjust) and married to U.S. citizens, this was disappointing news. As the Philippines is a non-border country, those who entered without visas are the only ones eligible, and this piecemeal measure leaves out many Filipinos who have been waiting for an opportunity to obtain lawful status and adjust to permanent residency. While it’s frustrating, I remain hopeful that future administrations will support broader, more comprehensive immigration reform.

In our August 2024 Newsletter, I’ve addressed a follower’s question regarding delays caused by sputum tests at St. Luke’s Medical Center Extension Clinic in Manila. Additionally, we’re sharing good news about improved naturalization processing and options for seeking prosecutorial discretion. These opportunities remain available for a few more months under the current administration, and while I am optimistic about the outcome of the 2024 Presidential election, it’s wise to explore any options that can help avoid potentially restrictive immigration policies in the future.

Enjoy the rest of your summer, and welcome to the fall season!

Sincerely,
Atty. Lou

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Updates

Texas, 15 States challenge Keeping Families Together Program

Texas, 15 states challenge Keeping Families Together Program
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Just four days after the implementation of the Parole in Place program for spouses of U.S. citizens, a lawsuit was filed seeking to suspend it. As of August 23, 2024, the plaintiffs have filed a Motion for Temporary Restraining Order, Preliminary Injunction, and Stay of Agency Action, challenging the Biden administration’s Keeping Families Together program, also known as Parole in Place. The lawsuit was brought by Texas and Idaho, along with 14 other state attorneys general from Alabama, Arkansas, Florida, Georgia, Iowa, Kansas, Louisiana, Missouri, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, and Wyoming.

In their 67-page court filing, the plaintiffs assert that the program is illegal, arguing that it exceeds the executive branch’s authority to set immigration policy. They claim that the program constitutes a misuse of parole authority, stating, “The Biden-Harris Administration — dissatisfied with the system Congress created, and for blatant political purposes — has yet again attempted to create its own immigration system.”

Kelli Stump, President of the American Immigration Lawyers Association (AILA), responded to the lawsuit, saying:

“This is another example of states attempting to stop the federal government from using its well-established legal authority to promote family unity. In its place, these states and Stephen Miller, the architect of Donald Trump’s anti-immigrant policies, hope to re-institute a xenophobic, anti-family, anti-American agenda. We are talking about the family members of U.S. citizens who have been stuck in long-term legal limbo and, through Keeping Families Together, can now apply for legal status rather than endure an arduous and unworkable bureaucratic process. These are individuals who have been living in the United States for at least a decade and are contributing to American communities. It is reprehensible and nonsensical that these states want to undermine the core American value of strengthening families when cutting the red tape will also ensure a more secure and fairer immigration system. From a purely legal standpoint, the states are advancing weak, baseless arguments to justify their standing to sue that in no way merit the program being enjoined. While the program remains in effect, AILA members will continue to help their clients apply for this life-changing protection.”

At present, USCIS continues to accept applications, although this could change if the plaintiffs’ motion is granted.

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C. for 32 years. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Why consider the option of seeking Prosecutorial Discretion?

Why consider the option of seeking Prosecutorial Discretion?
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Prosecutorial Discretion is one of the few immigration policies that this Biden Administration had emphasized during his term. Prosecutorial Discretion (PD) by U.S. Immigration and Customs Enforcement (ICE) is a critical option for individuals in unlawful status. PD allows ICE officers and attorneys to prioritize certain cases for enforcement while deprioritizing or deferring action on others, often benefiting individuals who do not pose a threat to public safety or national security. 

For those in unlawful status, seeking PD can result in relief from deportation or removal, allowing them to remain in the U.S. without fear of immediate removal. With changes in administrations often leading to shifts in immigration policy, those in unlawful status should consider taking advantage of PD while President Biden’s administration, which has demonstrated a more lenient stance on immigration enforcement, is still in power. Acting promptly is crucial, as future administrations may take a more aggressive approach toward enforcement, closing the window of opportunity for relief. Below are basic information about Prosecutorial Discretion.

What is Prosecutorial Discretion?

Prosecutorial discretion (PD) is the government’s power to decide how to apply the law to someone. In immigration situations, this can happen at various points in a person’s case and in different ways.In immigration situations, this can happen at various points and in different ways. For instance, the Department of Homeland Security (DHS) might opt not to take an immigration case to court. Attorneys from Immigration and Customs Enforcement (ICE) might stop or delay a court case, agree with the immigrant’s lawyer on certain facts, suggest that the immigrant’s request for relief should be accepted, or choose not to appeal a court decision. They can even reopen a closed immigration case if they want to. ICE also has the power to decide who to arrest, keep in custody, or release while a final decision is made on a case. 

How does the government make decisions about prosecutorial discretion? 

Every case is looked at separately. The government has written rules to help the Department of Homeland Security (DHS) decide when to use PD. According to these rules, there are two types of cases: nonpriority and priority. Non-priority cases aren’t high on the government’s list for enforcing the law and might qualify for PD. Priority cases include people who are seen as risks to national security, public safety, or border security (like those who entered the United States without permission after November 1, 2020). These cases probably won’t qualify for PD. 

What factors are considered when evaluating PD?

The government considers many factors in making its determination, including: 

  • Age, especially if an individual is young or older 
  • Length of time in the United States 
  • Whether you are a victim of a crime or a witness, cooperation with law enforcement 
  • Eligibility for immigration relief 
  • Military service 
  • Whether you are a lawful permanent resident
  • Whether you are pregnant, postpartum, or nursing
  • Have U.S. citizen children or spouse 
  • Serious medical conditions
  • Other compelling humanitarian factors  

What should I do if I believe I might be eligible for prosecutorial discretion? 

If you believe you are eligible for PD, you should speak to an attorney at Tancinco Law, P.C. to evaluate all potential options. An attorney will likely ask you to collect documents and information to support the PD request. 

President Biden’s administration has emphasized focusing immigration enforcement on individuals with serious criminal records, and the use of PD has been encouraged to reduce the backlog of cases in immigration courts. By seeking PD, individuals in unlawful status can potentially have their cases deprioritized or even closed, allowing them to remain in the U.S. legally for the time being. As this administration’s time winds down, it’s important for those affected to consider all options, including PD, to secure their future in the U.S. before any potential policy shifts under a new administration.

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C. for 32 years. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Updates

Restoring Faith: Noticeable Increase in Naturalized Citizens in the Biden Administration

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In 2021, President Biden issued an executive order aimed at restoring faith in the legal immigration process. A key part of this effort was to significantly reduce naturalization processing times, with the goal of strengthening the integration of new Americans.

Several changes under this administration appear to be benefiting new U.S. citizens. Notably, the backlog of naturalization cases has decreased. By 2023, the backlog stood at 416,034 citizenship applications—a 44% drop from the high of 942,669 in 2020 and the lowest backlog since 2015.

Although the filing fee for naturalization increased from $640 to $710, USCIS has made it easier for low-income applicants to qualify for reduced fees. The naturalization application itself has also been streamlined, shrinking from 20 pages to 14 pages.

A study by Boundless found that by May 2024, the average processing time for citizenship applications had dropped to just five months—a 15% reduction from the previous year and a more than 50% decrease from 2022. This expedited processing is evident in the USCIS San Francisco District Office, where applicants often receive interview notices within 3-4 months of filing. Oath ceremonies are commonly held the same day or the next day after the interview. This marks a stark contrast to the previous administration, when naturalization processing often took up to 12 months, and some cases were even reopened after naturalization had been granted.

Nationally, around nine million green card holders are eligible for naturalization but have yet to apply. In 2023, more than 25% of lawful permanent residents from Mexico were eligible to apply, and the Philippines is among the top five countries with the most eligible non-U.S. citizens.

One of the most significant rights of U.S. citizenship is the right to vote. With the 2024 Presidential election just months away, 81.4% of newly naturalized citizens are expected to cast their ballots, according to a survey by the U.S. Immigration Policy Center.

With these positive developments in naturalization processing, there’s no better time to apply for U.S. citizenship than now. If you have any questions, contact Tancinco Law P.C. at 415 397 0808 or visit our website at www.tancinco.com.

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Immigrant Visa Interview: Sputum Exam means delay in Visa Application

Immigrant Visa Interview: Sputum Exam means delay in Visa Application
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Dear Atty. Lou,

My mom is 78 years old and was scheduled for her immigrant visa interview at the U.S. Embassy in Manila. We received a response on her medical examination at St. Luke’s that she will need a sputum test. It will take a few more weeks of additional screening before results are given on the sputum test. Her interview is in 10 days. The screening  and results will not be completed by date of her interview.

Should my Mom appear at her scheduled  interview or will the immigrant visa interview be canceled? We live in the province and we are wondering if my Mom has to travel to Manila for her interview. We have not received any letter or email canceling her interview. What should we do? What will happen to her visa application if my Mom is tested positive for tuberculosis?

Agnes

~

Dear Agnes,

The U.S. Embassy in Manila generally requires all immigrant visa applicants to complete their medical examination, including any additional testing, before attending their visa interview. Since the results of your mom’s sputum test will not be available by the date of her scheduled interview, it is likely that her interview will be postponed until the medical examination is fully completed. This includes receiving a clearance from St. Luke’s Medical Center, the authorized medical provider for U.S. visa applicants in the Philippines.

When visa applicants have irregular chest x-ray or signs of tuberculosis, the doctor at St. Luke’s Medical Center Extension Clinic (SLEC) will send applicants for sputum testing to confirm. Sputum test is to rule out TB or start treatment. The chest x-rays and subsequent request for sputum test is to protect the health of the applicants, the U.S. citizens.

There may be additional fees for sputum smears and other tests. The sputum culture reports can take 8 to 9 weeks to be available. If the result is negative and the SLEC issues a medical clearance, the visa interview will be scheduled and a visa will eventually be issued. If the sputum test is positive for TB, the visa applicant may need treatment under the DOT (directly observed therapy) program. Of those sent for sputum testing, about 93% of them are false alarms.

If visa applicants have to do 6 months treatment, commonly referred to as DOT (directly observed therapy) they will have to pay for a second medical at completion.  

Medical examination at the St. Luke’s Medical Center Extension Clinic (SLEC) increased this month to P28,650 for adults (15 years old and older) and P13,910 for children (14 years old and below). If a sputum culture and screening is to be taken, that will be an additional cost to the visa applicant.

The U.S. Embassy will move your mom’s appointment date upon notification from SLEC that additional tests/screening are required. 

Be aware of the expiration date of the medical exam which is valid only for 1 year.  Considering delays caused by the additional sputum tests (and treatment) your Mom will have to repeat the whole process if the medical exam expires.

Thank you for your question.

Atty. Lou

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C. for 32 years. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Updates

Keeping “Some” Families Together

Update on the PIP Program
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Eligibility Gap: New Parole in Place (PIP) Program Leaves Some Non-Citizen Spouses Behind

On June 18, 2024, President Biden announced a new program targeting spouses of U.S. citizens who are unlawfully present in the country. This development sparked excitement among many non-immigrants without legal status, who viewed it as a potential pathway to citizenship. However, after waiting two months for the regulations to be released, it became clear that the majority of beneficiaries are likely to be nationals of Western Hemisphere countries.

The most critical eligibility requirement for this Parole in Place (PIP) program is that the applicant must not have entered the U.S. with a visa. If the applicant entered with an expired non-immigrant visa, such as a visitor’s visa, and overstayed their authorized period, their PIP application will be denied. To qualify, among other requirements, the applicant must be considered an “applicant for admission,” meaning they were neither inspected nor admitted at a port of entry or border checkpoint. This applies to individuals who entered the U.S. without inspection by a CBP officer, commonly referred to as EWIs (Entered Without Inspection).

According to the Federal Register notice, an estimated 64 percent of eligible non-citizens are Mexican nationals, while 20 percent hail from Guatemala, Honduras, and El Salvador. An additional 13 percent are from other Western Hemisphere countries. This PIP process reflects the U.S. commitment to addressing migration challenges throughout the Western Hemisphere, a goal shared with its partner countries. Several nations have requested regularization for their nationals who have resided in the United States for extended periods without lawful status. For instance, the Mexican government has urged the U.S. to regularize Mexican nationals who have been long-term residents in the country.

As the Philippines is not a Western Hemisphere country, only a small percentage of spouses of Filipino descent will be eligible for this PIP program. Since the Philippines is not a border country, travelers from non-border countries require both a passport and a visa to enter the U.S. Those who entered with a visitor’s visa (even if it has since expired) and are married to U.S. citizens do not need PIP, as they can file for adjustment of status.

Nevertheless, a significant number of Filipinos remain in unlawful status despite being married to U.S. citizens without options for legalizing their stay. There are cases of those who entered with visas but they fall victim to unscrupulous travel agents who take back the passport containing their visas. These individuals, who are unlawfully present in the U.S., may not apply for adjustment of status because they lack proof of entry. USCIS categorizes these travelers as having entered unlawfully.

Another group consists of Filipino spouses of U.S. citizens who “jumped ship” as crewmembers with C1/D visas and subsequently overstayed. Since they entered with a visa, USCIS deems them ineligible for PIP.

Although the Philippines is not a border country, some Filipino travelers have entered the U.S. by first traveling to a neighboring country, such as Mexico or Canada, and then crossing the border. Those who meet these criteria may apply for PIP and, if eligible, adjust their status to permanent resident.

Eligibility Criteria

There are two categories of individuals who may apply for PIP: spouses of U.S. citizens and stepchildren of U.S. citizens.

As mentioned, the applicant must be present in the United States without admission or parole.

For spouses, the requirements include:

  1. Continuous physical presence in the United States since June 17, 2014, through the date of filing the PIP request.
  2. A legal and valid marriage to a U.S. citizen on or before June 17, 2024.
  3. No disqualifying criminal history, and not deemed a threat to public safety, national security, or border security.
  4. Submission of biometrics and undergoing the required background checks and national security/public safety vetting.

For stepchildren of U.S. citizens, the requirements include:

  1. Being under the age of 21 and unmarried on June 17, 2024.
  2. Presence in the U.S. on or before June 17, 2024 (with no 10-year physical presence requirement).
  3. A non-citizen parent who entered into a legally valid marriage with a U.S. citizen on or before June 17, 2024, and before the stepchild’s 18th birthday.
  4. No disqualifying criminal history, and not deemed a threat to public safety, national security, or border security.
  5. Submission of biometrics and undergoing required background checks and national security/public safety vetting.

Filing Process

Eligible individuals may file their PIP requests either individually or through their legal representative. All filings must be submitted online via either an attorney’s USCIS account or an individual USCIS account. The filing fee for the PIP request is $580.

Potential Legal Challenges

Similar to the Deferred Action for Childhood Arrivals (DACA) program, there may be political efforts to halt this program. As of this writing, no litigation has been filed to suspend the PIP program. If litigation does occur and a PIP request has already been accepted by USCIS, the adjudication will depend on whether the court orders a temporary suspension.

Screening for Eligibility

Some prospective applicants, including widows and individuals in removal proceedings, may also be eligible. Each case is unique, and USCIS has indicated that it will adjudicate requests on a case-by-case basis.

It is important to note that PIP is not an immigration relief program, nor is it a form of “amnesty.” This is why not all unlawfully present spouses of U.S. citizens will qualify. However, for those who do qualify, PIP could provide a pathway to filing for adjustment of status as the spouse or
stepchild of a U.S. citizen. Since not all spouses or stepchildren will be eligible for PIP, it is advisable to have one’s case analyzed by a trusted legal counsel to determine eligibility or to explore other available legal options.

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C. for 32 years. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

Related: Parole in Place Program Update (08/26/2024)

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Updates

Update on the Parole in Place

Update on Parole in Place
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On Monday, August 19, 2024, the U.S. Citizenship and Immigration Services (USCIS) will begin accepting requests for Application for Parole in Place for Certain Noncitizen Spouse and Stepchild of U.S. citizens. Only a USCIS filing guide was released today but there is no Federal Register notice that was published as we expected.

According to the USCIS, Form I-131F will only be available to file online.

Eligibility and Process

To be considered on a case-by-case basis for this process, an individual must:

  • Be present in the United States without admission or parole;
  • Have been continuously present in the United States for at least 10 years as of June 17, 2024; and
  • Have a legally valid marriage to a U.S. citizen as of June 17, 2024.

In addition, individuals must have no disqualifying criminal history or otherwise constitute a threat to national security or public safety and should otherwise merit a favorable exercise of discretion.

Noncitizen children of potential requestors may also be considered for parole under this process if they are physically present in the United States without admission or parole and have a qualifying stepchild relationship with a U.S. citizen as of June 17, 2024.

Upon receipt of a properly filed parole-in-place request, USCIS will determine on a case-by-case basis whether a grant of parole is warranted and whether the applicant merits a favorable exercise of discretion. All requests will take into consideration the potential requestor’s previous immigration history, criminal history, the results of background checks and national security and public safety vetting, and any other relevant information available to or requested by USCIS. USCIS has strong processes in place to identify and address potential fraud, which will be applied here to ensure the integrity of this program.

This parole in place does not apply to all those who are present in unlawful status as this is not an “amnesty.” This parole may be granted only to certain individuals who are present in the United States without admission.

For more information on eligibility and application process, contact Tancinco Law P.C. at 415 397 0808 or email us at law@tancinco.com.