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Court Temporarily Blocks Increase in USCIS Filing Fees

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On September 29, 2020, the U.S.  District Court for the Northern District of California granted the motion for a preliminary injunction filed by eight non profit organizations that provide a variety of “services benefitting low-income applicants for immigration benefits.”

The court orders the suspension of the implementation and the effective date of USCIS Immigration Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) (the “Final Rule”) in its entirety pending final adjudication of this matter.

Court also ordered Defendants Wolf, in his official capacity under the title of Acting Secretary of DHS; Cuccinelli, in his official capacity under the title of Senior Official Performing the Duties of the Deputy Secretary of DHS; DHS; and USCIS, and all persons acting under their direction, to suspend the implementation or enforcement of the Final Rule increasing the fees

This order will take effective immediately and will remain in effect pending trial of the case. On October 1, 2020, USCIS issued an update stating that while the rule is preliminarily enjoined, USCIS will continue to “accept USCIS forms with the current editions and current fees” and “use the regulations and guidance currently in place to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator’s Field Manual (AFM) Chapters 10.9 and 10.10.”

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Visas Available for Filipino Registered Nurses, Physical Therapists & Other Healthcare Workers (including Caregivers)

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October 2020 Visa Bulletin Indicates Priority Dates for EB3 are “Current”

In a recent positive development for visa applicants under the employment-based third preference (often referred to as EB3) category visa, the Department of States just released its October 2020 Visa Bulletin on September 24, 2020. The new release shows that ALL employment-based preference categories for Filipino nationals are now current. When a priority date of a visa petition is current, it means that the visas are available. Many Filipino EB3 visa applicants will benefit from this visa availability including professionals, skilled or even unskilled workers. To take advantage of this visa availability, however, one need to understand the process of immigrating to the United States through employment-based preference categories.

Concurrent Filing of Employer Petition and Adjustment of Status

Persons seeking to immigrate to the United States as employment-based immigrants undergo two processes before an immigrant visas can be issued.

First, they must establish that they qualify in one of the employment-based immigrant categories, by having an employer file an “Immigrant Petition for Alien Worker”.

Second, is either the “Adjustment of Status” for those who are already present in the United States; or, “Consular Processing” for those who are still outside the United States. For those who are already in the US, the Adjustment of Status, can be concurrently filed with the employer petition.

The U.S. Citizenship and Immigration Services (USCIS) does not have to require a previous approval of an employer petition before being able to pursue the second step of the Adjustment of Status process. This is the “concurrent filing” which allows persons applying for permanent residence to file both the Application to Register Permanent Residence together with the employer’s Immigrant Petition for an Alien Worker. This is a huge advantage as applicants who are currently inside the US can wait for their greencard approvals in the United States (without needing to leave the country) and at the same time be qualified to get an employment authorization card pending the greencard approval.

Concurrent filing affects only the Adjustment of Status process and is permitted for applicants who are already in the United States and does not apply to those pursuing consular immigrant visa processing at the U.S. Embassy. It is important to remember, however, that there are numerous legal requirements that an applicant needs to qualify in order to benefit under this concurrent filing procedure. Among others, the applicant is required to be in “lawful” status or has 245(i) eligibility and not subject to grounds of inadmissibility.

Pre-Certified Occupations: Nurses & Physical Therapists

This new development benefits EB3 immigrants who are professionals, as well as other skilled or unskilled workers whose PERM applications have already been approved. Those exempt from the labor certification and who are considered pre-certified under the Schedule A occupations as per Department of Labor regulations may also concurrently file their applications.

There are a significant number of Filipino professionals who are beneficiaries of existing EB3 petitions. But we also know that there are many more Filipino nurses and physical therapists who are already pre-certified and can immediately take advantage of this visa availability. Schedule A occupations are those jobs for which there are not a sufficient number of U.S. workers who are able, willing, qualified, and available to fill the number of available jobs that exist in the United States, and the wages and working conditions of U.S. workers similarly employed will not be affected by the employment of foreign workers in Schedule A occupations. Currently, there are only two designated Schedule A occupations: First are the RNs; and, and Second, are the Physical Therapists.

Other health care workers such as licensed vocational nurses (LVNs), licensed practical nurses (LPNs), certified nurse assistants (CNAs), as well as nurses’ aides and caregivers do not qualify for Schedule A pre-certification. However, they may still qualify and benefit under this concurrent filing if they have approved Labor Certifications or PERMs.

Due to the pandemic and the visa restrictions brought about by Trump Proclamations, there have been very few family-based visas that were issued the past few months; thus, resulting in excess visa numbers that were re-allocated to the employment-based petitions. The forward movement of the priority dates is a result of the infusion of unused family-based visa numbers to the employment-based visas for Fiscal Year 2020.

It is uncertain as to when the employment-based preference categories for Filipino nationals will remain current. But for now until October 31, it is encouraged that those who do qualify explore ways to immediately apply for the visas while the availability remains current for it is unknown when the backlog will build up again.

(Lourdes ‘Atty Lou’ S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law PC and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw, LinkedIn or at 1-888-930-0808)

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Immigration Alert: Public Charge Rule Reinstated for Implementation

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On September 11,2020, the Second Circuit Court of Appeals overturned the New York federal judge’s order  blocking the Department of Homeland Security from denying permanent residency to legal immigrants who may have received certain public assistance in the wake of COVID-19 pandemic.

As a result, on September 22, 2020, the U.S. Citizenship and Immigration Services (USCIS) issued guidance on how it will implement the public charge rule (also referred to as the “wealth test”) that took effect on February 24, 2020.  According to USCIS, the following rules will now be implemented:

  • Approved Petitions/Applications: If as a result of the injunction case that was filed, USCIS approved applications and petitions without the required public charge form known as the Affidavit of Self Sufficiency (I-944), it will no longer open the case and re-adjudicate.
  • Pending Petitions/Applications: Those who filed petitions or applications before October 13, 2020 and who did not attach the Affidavit of Self Sufficiency Form, a Request for Evidence (RFE) will be issued by the USCIS to afford the petitioner or applicant to submit the I-944 form.
  • Petitions/Applications Filed On or After October 13, 2020 without I-944 form will be rejected by USCIS.
  • On Non-immigrant Visa Petitions or Applications: USCIS also indicated it will ask for any missing evidence for Form I-129, Petition for a Nonimmigrant Worker; Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker; Form I-539, Application to Extend/Change Nonimmigrant Status; and Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status.

Applications for Immigrant and non-immigrant visas may be denied based on findings that the visa applicant is more likely than not to be a public charge.

While there are added restrictions to the new public charge rules, there are also exemptions. The final public charge rule excludes: public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children; public benefits received by certain international adoptees and children acquiring U.S. citizenship; Medicaid for aliens under 21 and pregnant women; Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act); and Medicaid benefits for emergency medical services.; applicants seeking asylum, certain U and T visa applicants and self petitioner’s based on Violence Against Women’s Act (VAWA).

With the harsh ruling by the Second Circuit Court of Appeals, the intending immigrants and even their U.S. citizens or legal permanent residents will be seriously impacted. And during this pandemic, the impossible choice, according to U.S. District Judge George Daniels, whose decision was overturned, will be between jeopardizing public health/personal safety and immigration status. Until a new law is passed or the Supreme Court rules on this issue, the public charge rules implemented on February 24, 2020 stands.

(Updated as of September 23, 2020)

( Lourdes S. “Atty.Lou” 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, LinkedIn, Facebook/tancincolaw, or at 1-888-930-0808)

 

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Policy of Waiving “In-Person Interview” at the U.S. Embasssy Expanded Temporarily

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U.S. Department of State announced on August 25, 2020 that it has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a non-immigrant visa in the same classification. Before the change, only applicants whose nonimmigrant visa expired within 12 months were eligible for an interview waiver. The State Department has temporarily extended the expiration period to 24 months. This temporary change will be in effect until December 31, 2020

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Census, Apportionment and All Immigrants

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Trump administration issued a Presidential memorandum in July 2020 that will prohibit undocumented immigrants from being counted in the apportionment following the 2020 census. Under this memorandum, he wants the undocumented to be subtracted from the census numbers for purposes of apportionment.

In a separate memorandum, he also wants to have the census concluded by the end of September 2020.

Lawsuits were filed against Trump opposing both these policies.

In the first case, the Federal Judge issued an order blocking the Census Bureau from laying off staff and halting in person counting efforts. A hearing will be held on September 17 where the plaintiffs are arguing for more time to count.

In the other case filed, NY v. Trump the Plaintiffs alleged that the Presidential Memorandum violates statutes governing the census and apportionment. The Court ruled against Trump in favor of the plaintiffs on the grounds that there may not be two (2) sets of numbers, one from the decennial census and another set that will be used for apportionment. There should only be one set of numbers and that is from the decennial census. Secondly, even those who are in unlawful immigration status qualify under the definition of “persons in” a “State” as Congress used those words. On these bases, the Presidential Memorandum was declared to be an unlawful exercise of the authority granted to the President by statute.

Data derived will be used to determine congressional districts, for distribution of federal funds. These funds will in turn be used to finance federal benefits and programs such as Medicare and Medicaid, highway construction etc.. which apportionment of funds will be based on population based on the number derived from census which includes people living in each district.

It is important for all residents of the United States to fill up the census if they have not already. Every person counts regardless of immigration status.

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REAL ID Enforcement extended for another year, or until October 1, 2021

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The Department of Homeland Security (DHS) announced that due to circumstances resulting from the COVID-19 pandemic and the national emergency declaration, their agency is extending the REAL ID enforcement deadline by a year. The new deadline for REAL ID compliance is now October 1, 2021. Below is the DHS rationale for this extension:

“The federal, state and local response to the spread of the Coronavirus here in the United States necessitates a delay in this deadline. Our state and local partners are working tirelessly with the Administration to flatten the curve and, therefore, we want to remove any impediments to response and recovery efforts. States across the country are temporarily closing or restricting access to DMVs. This action will preclude millions of people from applying for and receiving their REAL ID. Extending the deadline will also allow the Department to work with Congress to implement needed changes to expedite the issuance of REAL IDs once the current health crisis concludes.”

This extension means that for purposes of domestic flights in the United States, Transportation Security Administration’s (TSA) and airlines’ agents may still accept the Drivers licenses or identifications that are not REAL-ID compliant until October 1, 2021. And since there is a one year extension, those who are eligible to apply for a REAL ID compliant license must do so without further delay. Those individuals who do not have legal status usually are not granted driver’s licenses or identifications that are not REAL-ID compliant. It will also be prudent to seek ways on how to legalize immigration status if there are available legal options.

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Increased USCIS fees to take effect October 2

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On September 2, 2020, U.S. Citizenship and Immigration Services (USCIS) published its final rule on fee increases. This means that all petitions and applications received by USCIS by October 2, 2020 must have the new filing fees attached.

Eligible applicants for naturalization to U.S. citizenship must plan on filing their applications in time prior to the effective date of the new filing fees. The N-400 Form, Application for Naturalization, carries the highest increase in filing fee from $640 to $1,170. That is an 83% increase.

Although the waiver of fees for certain applicants may still be requested, USCIS reserves the right to exercise its discretion to limit the fee waivers. There will be changes in the income requirements for a fee waiver from 150 percent of the Federal Poverty Guidelines to 125 percent. Lowering the percentage means those who may have qualified before may no longer obtain a waiver if their income is higher than 125 percent of the Federal Poverty Guidelines.

Those individuals who are being petitioned by their U.S. citizen or lawful permanent resident parent, child or spouse and are eligible to adjust status will also have to pay increased fees. There will be no more reduced fees for children under 14 years of age for adjustment applicants. The standard fee of $1,130 will be applied across the board to all adjustment applicants.

Prior to these changes, there is no fee on employment authorization documents if filed simultaneously with the application for adjustment of status. With the recent changes, USCIS now requires separate fees for employment authorization documents (Form I-765) which will be $550. That is from $0 to $550. Likewise, applications for advance parole (Form I-131) will have a fee of $590.

Other filing fees for other applications will also be increased. (See USCIS.gov website for more information on increased fees.)

For applicants who are just waiting to naturalize or adjust and have all the legal requirements, they should consider filing their applications or petitions as soon as possible, or before October 2, 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)