Author: tancincowp

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Green Card Holders Unable to Timely Return to the U.S.

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We have heard of some clients who are unable to return to the U.S. after a temporary visit abroad – for example to the Philippines – due to COVID-19 related reasons. Either (1) they cannot get a flight back to the U.S. or (2) their health situation makes them vulnerable to contracting the corona virus or (3) they already have the corona virus. What will be the impact of their extended stay outside to the U.S. to their status as green card holders?

Let’s look at 3 scenarios:

First, the green card holder has been in the Philippines for more than 6 months. What will happen when s/he finally returns to the U.S?

If you are returning after more than 6 months, there will be the usual strict scrutiny by the CBP officer because you are considered to be seeking admission. Meaning to say, your green card is not just sufficient for entry, they will have to look whether or not there are reasons to deny your entry. But if you mention that the COVID-19 circumstances had prevented you from returning, more likely than not you will have no problem entering the U.S.

Second, the green card holder has been outside the U.S. for more than 12 months.

If you are a green card holder, you should not stay outside the United States for more than 1 year. So what happens if you stayed for more than a year, you will be deemed to have abandoned your residence. You need to obtain the SB-1 or returning resident visa from the U.S. Embassy and explain that your reason for untimely return is a COVID-19 related reason; more likely than not, you will be granted a returning resident visa as long as there is no proof that you have abandoned your resident status in the U.S. If you are in a rush to return and you flew in the U.S. without the returning resident visa, you will be asked by CBP to explain your absence for one year and they may allow you in anyway if it is a COVID-19 related reason.

Third, the re-entry permit of the green card holder already expired.

The same as scenario 2. If you have COVID-19 related reasons, you can return to the U.S. by obtaining a returning resident visa, or flying to the U.S. without it and explaining to the CBP officer that COVID-19 related reason had prevented you from returning. Again, you should show that you have not abandoned your U.S. residence even if you stayed abroad during the validity of your re-entry permit and beyond.

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Updates

Department of State’s Update on Visas for Medical Professionals

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The following is a March 26, 2020 update from the U.S. Department of State.

“We encourage medical professionals with an approved U.S. non-immigrant or immigrant visa petition (I-129, I-140, or similar) or a certificate of eligibility in an approved exchange visitor program (DS-2019), particularly those working to treat or mitigate the effects of COVID-19, to review the website of their nearest embassy or consulate for procedures to request a visa appointment.

For those foreign medical professionals already in the United States:
J-1 Alien Physicians (medical residents) may consult with their program sponsor, ECFMG, to extend their programs in the United States. Generally, a J-1 program for a foreign medical resident can be extended one year at a time for up to seven years.

Note that the expiration date on a U.S. visa does not determine how long one can be in the United States. The way to confirm one’s required departure date is here: https://i94.cbp.dhs.gov/I94/#/home.

Those who need to extend their stay or adjust their visa status must apply with USCIS. Their website is here: https://www.uscis.gov/visit-united-states/extend-your-stay”

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Updates

Updates of Agency Closures: USCIS, Immigration Courts, Embassy

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USCIS : CLOSED UNTIL MAY 3

U.S. Citizenship and Immigration Services (USCIS) offices have extended their temporary closure from April 1 to May 3 and will reopen on May 4.

As a result of this closure, there will be no face to face interviews, no oath taking ceremonies for new U.S. citizens. Interviews including biometrics scheduled during this period that the USCIS is closed will be rescheduled. USCIS will send new Notices of Interview. Please note that U.S. postal services are still open and if you need to file for applications for extensions or changes of status you can still do so either by mail and when permitted through on-line filing.

IMMIGRATION COURTS (EOIR): NON-DETAINED HEARINGS ARE POSTPONED UNTIL MAY 1
Those who have pending hearings before Immigration Courts and they are not detained, their hearings scheduled between now until May 1 will be rescheduled. Hearings for detained clients/respondents are still ongoing unless the Court grants continuances.

U.S. EMBASSY IN MANILA: VISA PROCESSING AND ISSUANCES ARE PUT ON HOLD
The U.S. Embassy in Manila has suspended temporarily its immigrant and nonimmigrant visa services. However, emergency services are still provided especially for U.S. citizens. Please check the U.S. Embassy website for more information.

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USCIS Extends for 60 days Deadlines to File Responses to RFEs

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In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services announced this week that it is adopting measures to minimize the immigration consequences associated with responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020. This rule also applies to notice of intent to revoke (NOIR), notice of intent to terminate (NOIT) or appealable decisions within AAO jurisdiction where the issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020.

As a result, applicants and petitioners who receive an RFEs or NOIDs dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.

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ADVISORY: Tancinco Law Offices Temporary Closure (Except for Urgent Matters) until June 1, 2020

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Here’s our updated service advisory as of April 1, 2020:

COVID-19 cases in the United States have yet to reach its peak according to reliable sources and it is uncertain when this coronavirus crisis is going to end. The safety of our families, employees and clients are our priority at this time. As a precautionary measure and to protect the health of our communities, our office will be temporarily closed from April 1 to May 31. We will reopen on June 1, 2020. We shall continue to process cases/petitions of our clients during the lockdown period to avoid negative impact on pending cases/petitions.

For emergency services of existing or new clients, please contact us at 1-888-930-0808 or email us at law@tancinco.com. You can also visit our website at tancinco.weareph.com/old.

Soon this pandemic will come to pass and we will be back in full operation. In the meantime, your well being and health is our priority. Stay safe and be well.

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Updates

U.S. Embassy in the Philippines Update

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As a precautionary measure to assist in limiting the spread of COVID-19, U.S. Embassy in the Philippines is cancelling all routine immigrant and nonimmigrant visa appointments and notarial services pending further notice.

All applicants should monitor their email for appointment updates. The American Citizen Services Unit will continue to serve U.S. citizens, except for notarial services, which have also been postponed pending further notice.

For emergencies involving U.S. citizens, contact ACSinfoManila@state.gov.

For updates on U.S. Embassy operations and consular services, keep following @USEmbassyPH on Facebook and Twitter or send an email to the Consular Section at:

  • For U.S. citizen assistance or emergency: ACSinfoManila@state.gov
  • For Immigrant Visas (family, employment, and fiancé(e) visas): IVManilaReplies@state.gov
  • For Nonimmigrant Visas (tourist, business, and student visas): CONSManilaNIV@state.gov
  • U.S. Embassy Hotline: +(632) 5301-2000
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Updates

USCIS/ICE/Immigration Courts in the SF Bay Area Updates

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Do You Have a Scheduled Hearing or Interview at the USCIS or Immigration Court in San Francisco?

See updated information below:

USCIS- San Francisco & San Jose
Interviews scheduled for March 17 through April 6 are cancelled. Officers are attempting to contact all scheduled interviewees to inform them of rescheduling. Most likely new interview dates will be for late May to June. Naturalization applicants with approved N400 and those scheduled for Oath taking on March 18 and March 25 will have their oath taking ceremony rescheduled to a later date.

USCIS- Fresno
Interviews are cancelled beginning March 18 at this USCIS office. All interviewees will receive rescheduled dates for their interviews.

You can also contact the USCIS through your online account or by calling the USCIS customer service number: Dial 800-375-5283 (for people who are deaf, hard of hearing, or have a speech disability: TTY 800-767-1833) to access automated information through an interactive menu 24 hours a day, seven days a week. If you are outside the United States or a U.S. territory, you can call 212-620-3418.

Biometrics ASCs:
Application Support Centers: Starting tomorrow, all six Bay Area ASCs are closed: San Jose, San Francisco, Fresno, Santa Rosa, Oakland and Salinas.

Immigration Courts:
If you have a master hearing (not individual hearing) please note that Master Calendar Hearings with schedule from March 16 through April 10 are postponed. Usual operations remain open specifically for filings except for Seattle.

ICE :
If you are required to do regular reporting before the ERO-ICE, note that the San Francisco ICE located at 630 Sansome Street remains open. But if anyone has a question about reporting, they should utilize the inquiry mailbox SFR-ERO-INQUIRIES@ICE.DHS.GOV to reschedule.

For questions about immigration matters or if you need legal representation or assistance, please contact our office at 1 888 930 0808 or email us at law@tancinco.com, or visit our website at tancinco.weareph.com/old.

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Updates

Service Advisory during COVID-19 Crisis

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Note: This advisory has been updated as of April 1, 2020. Please see here to view latest advisory.

The welfare, health and safety of our clients, staff and attorneys are our top priority during this COVID-19 pandemic and we are in compliance with all the safety directives of the local and federal government.

As of March 17, 2020, and in accord with the San Francisco Bay Area Shelter-in-Place Policy, Tancinco Law will remain OPEN but will operate online, telephonically or through video conference. All “in-persons” consultations will be canceled at least until April 7, 2020.

Our staff and attorneys are committed and will continue to work and we will do all we can to assist existing and future clients. We continue to serve you on your legal needs especially for those with time-sensitive issues.

To communicate with us or schedule a telephonic or video conference we encourage you to call 1 888 930 0808 or 1 800 999 9096 or email us at law@tancinco.com. You can also visit our website at tancinco.weareph.com/old to schedule a telephonic and/or video conference.

Should you need to send us documents/written correspondence, we encourage you to upload your documents and email to us at law@tancinco.com. Should it become necessary to mail us the physical documents, please do call us at our phone numbers above and, depending on who the recipient is, we will give you a temporary mailing address where the physical documents can be mailed to. We encourage you to use a courier where there is tracking and confirmation of delivery.

The impact of the coronavirus (COVID-19) has been devastating for all of us and our families. But we are all in this together. Through our company website and social media postings, will continue to provide you with the latest update on the impact of COVID-19 as it relates to our immigrant community. We hope and pray that you all stay healthy and safe during this public health emergency.

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Updates

Overcoming “Break in Continuity of Residence” for Citizenship Purposes

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Arnel, a Filipino national, is a lawful permanent resident. He arrived in the United States in 2003 and resided with his U.S. citizen spouse. Arnel has substantial business ties in the Philippines and travels to Manila at least 3 times in a year but only for 2 months in duration. In 2018, he stayed for 9 months in Manila to attend to his business that was encountering some financial issues. Last year, Arnel decided to file for his naturalization to become a U.S. citizen. He was recently called for the interview last month February 2020. The USCIS officer informed Arnel that he was not eligible to become a U.S. citizen. He was told that he spent more than 6 months in the Philippines and so he broke the continuity of his residence for purposes of citizenship. Was the finding of ineligibility accurate?

The Physical Presence Rule

Applicants for naturalization must demonstrate that they have been physically present in the United States for more than half of the required time (three years for those married to and residing with a U.S. citizen and five years for all others). In addition, pursuant to Section 316(b) of the Immigration and Nationality Act, applicants must demonstrate that they have continuously resided in the United States, or put another way, have not abandoned their residence (since such a finding is often the outcome of a naturalization case denied for such reasons).

Breaks in Continuous Residence

There are 2 ways outlined in which the continuity of residence is broken. First is absence for more than 6 months but less than 1 years. The second one is absence for more than 1 year or more.

To be able to continue counting the residence for purposes of naturalization, the applicant must show continuity. Oftentimes, green card holders are not aware and are under the false belief that if they stay for more than 6 months outside the U.S. they may still consider this as continued residence.

On February 26, 2020, USCIS released a policy clarification on this issue, the highlights of which states that (1) an applicant absent from the United States during the statutory period for more than 6 months but less than 1 year, must overcome the presumption that the continuity of residence has been broken in order to remain eligible for naturalization and (2) clarifies that an applicant who USCIS determines to have broken the continuity of residence must establish a new period of continuous residence; the requisite duration of that period depends on the basis upon which the applicant seeks to naturalize.

Overcoming the Presumption For Continued Eligibility

An applicant may overcome the presumption of a break in the continuity of residence by providing evidence to establish that the applicant did not disrupt the continuity of his or her residence. Such evidence may include, but is not limited to, documentation that during the absence: (1) The applicant did not terminate his or her employment in the United States or obtain employment while abroad; or (2) The applicant’s immediate family members remained in the United States; and/or (3) The applicant retained full access to or continued to own or lease a home in the United States.

In the case of Arnel, the USCIS officer was correct in stating that he broke the continuity of his residence unless contrary evidence is submitted by Arnel. Evidence such as his regular and continued employment in the U.S., ownership of his home and residence of his immediate family in the United States will be helpful in overcoming the presumption. If the USCIS officer accepts his evidence and is convinced that there is continuity of evidence, then Arnel may be approved for his U.S. citizenship.

(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/tancincolaw, or at 1-888-930-0808)