Author: tancincowp

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Coronavirus and its Impact on U.S. Travelers

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President Trump has issued a proclamation which contains measures intended to control and limit the entry of individuals potentially exposed to the coronavirus (COVID-19).

Travel Ban

 

Certain immigrants and non-immigrants are banned from entering the United States. This include those who were physically present within China, excluding Hong Kong and Macau, 14 days prior to their entry or attempted entry into the United States. The ban became effective at 5:00 pm (ET) on Sunday, February 2, 2020.

On February 29, 2020 the travel ban also extended to any non citizen who has visited Iran within the last 14 days.

On March 11, 2020, Trump added 26 more to the list of European countries subject to the travel ban.These countries are on the Schengen Area and comprises the following European states: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

Avoid Non-essential Travels

The Centers for Disease Control and Prevention upped its travel alerts for Italy and Iran yesterday to the highest level, Level 3, which means avoid all non-essential travel. The State Department also increased its warning advising Americans not to travel to certain regions of Italy and South Korea affected by the virus.

Mandatory Self Quarantine

U.S. citizens who are traveling from the enumerated European countries and those traveling to the Hubei province in China within 14 days of arriving to the United States will be subject to up to 14 days of mandatory quarantine. Returning U.S. citizens who had visited other parts of China, outside of Hong Kong, Macau, and the Hubei province, will be subject to monitoring at certain ports of entry, and potentially self-quarantine at home. With the recent advisory it is believed that travelers from Iran may also be subject to mandatory self quarantine.

Individuals Exempt from the Travel Ban (But Not from Mandatory Self Quarantine)

The Proclamation clarifies that it does not impact an individual’s eligibility for asylum, withholding of removal, or protection under the UN Convention against Torture (UNCAT). In addition to U.S. Citizens, the Proclamation does not apply to the following individuals:

  1. Lawful permanent residents of the United States;
  2. Spouses of a U.S. citizen or lawful permanent resident;
  3. Parents or legal guardians of a U.S. citizen or lawful permanent resident, provided that the U.S. citizen or lawful permanent resident is unmarried and under the age of 21;
  4. Siblings of a U.S. citizen or lawful permanent resident, provided that both are unmarried and under the age of 21;
  5. Children, foster children, or wards of a U.S. citizen or lawful permanent resident, or prospective adoptees seeking to enter the United States pursuant to the IR-4 or IH-4 visa classifications;
  6. Foreign nationals traveling to the United States at the invitation of the United States Government for a purpose related to containment or mitigation of the virus;
  7. Nonimmigrants under section 101(a)(15)(C) or (D) of the INA, 8 U.S.C. 1101(a)(15)(C) or (D), as a crewmember or any alien otherwise traveling to the United States as air or sea crew;
  8. Nonimmigrants on an A-1, A-2, C-2, C-3 (as a foreign government official or immediate family member of an official), G-1, G-2, G-3, G-4, NATO-1 through NATO-4, or NATO-6 visa;
  9. Foreign nationals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the CDC Director, or his designee;
  10. Foreign nationals whose entry would further important United States law enforcement objectives, as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees based on a recommendation of the Attorney General or his designee; or
  11. Foreign nationals whose entry would be in the national interest, as determined by the Secretary of State, the Secretary of Homeland Security, or their designees.

Please bookmark this page and refer to it from time to time for any updates on this ongoing global crisis. 

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Are You At Risk of Being Stripped of Your U.S. Citizenship?

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Creation of Stand Alone Denaturalization Section Under the DOJ May Trigger More Revocation of U.S. Citizenship

On February 26,2020, the Department of Justice announced the creation of its Denaturalization Section dedicated to investigating and litigating revocation of naturalization. The newly created stand alone section will join the existing sections within the Civil Division’s Office of Immigration Litigation—the District Court Section and the Appellate Section. This move underscores the Department’s commitment to bring justice to terrorists, war criminals, sex offenders, and other fraudsters who illegally obtained naturalization.

This move follows the creation of Denaturalization Task Force within the U.S.Citizenship and Immigration Services in 2018 indicating the policy trend of the administration running not only after the undocumented immigrants but also after American citizens.

As may be read from the DOJ’s press release, Assistant Attorney General Jody Hunt emphasized the main reason for the creation of the denaturalization section: “When a terrorist or sex offender becomes a U.S. citizen under false pretenses, it is an affront to our system—and it is especially offensive to those who fall victim to these criminals. The Denaturalization Section will further the Department’s efforts to pursue those who unlawfully obtained citizenship status and ensure that they are held accountable for their fraudulent conduct.”

Denaturalization may be found in Section 340 of the Immigration and Nationality Act. There are only certain legal basis to denaturalize an individual and this is initiated by the government through the federal district courts. In the past it was seldom utilized except in extreme cases like in denaturalization of former Nazis who lied about their past who illegally procured naturalization.

Those who are most likely to be affected by the administration’s effort to strip U.S. citizenship from naturalized citizens may be divided mainly into 3 categories. These are immigrants who procured their citizenship illegally because of the presence of:

  1. Prior criminal conviction that was concealed: Those who concealed their criminal convictions on their naturalization applications and their criminal cases are grounds for removal may have their cases referred for naturalization. Note that criminal charges or convictions must have occured before and during the naturalization process.
  2. Prior removal cases and assumed identities: Ten (10) years ago, the U.S. government discovered hundreds of individuals who had prior deportation orders and who used different names in their green card and naturalization applications. These cases are now being investigated and may be re-opened for denaturalization.
  3. Material fraud and misrepresentation. This refers to those who lied in obtaining their green cards through fraud and misrepresentation. The lie must have a relation to the eligibility for green card or naturalization to be a basis for denaturalization.

Once an immigrant is identified for investigation by USCIS for purposes of denaturalization, the matter will be referred to the Department of Justice’s Denaturalization Section under the Office of Immigration Litigation and the Assistant U.S. Attorney. Thereafter, the case will be filed with the federal district court having jurisdiction over the residence of the immigrant being stripped of citizenship. When the case is filed with the court the naturalized U.S. citizen may present evidence to avoid denaturalization. Note that this is a judicial process and only a federal judge may strip one of U.S. citizenship. There is a due process involved and a right to a hearing. If a citizen is denaturalized, most probably this individual will be put in removal proceedings. Whether or not he will be deported depends on available relief or waivers.

Naturalized U.S. citizens must now realize that they no longer have a sense of permanence when it comes to their immigration status. If you believe that you fall into any of the category of those who might be affected by this denaturalization effort of USCIS, it will be best to revisit and re-examine your naturalization application, and have your case assessed by competent legal counsel. And, if there is a possibility of denaturalization, prepare yourself to defend yourself in the federal court and, in the worse case scenario, explore applicable waivers or defenses to avoid removal.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)

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Updates

Initial H-1B Registration Period Opens at Noon Eastern on March 1

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The U.S. Citizenship and Immigration Services has announced that initial registration period for fiscal year (FY) 2021 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 20. During this period, prospective petitioners and representatives will be able to fill out prospective petitioner and beneficiary information and submit their registrations.

A confirmation number will be assigned to each registration submitted for the FY 2021 H-1B cap. This number is used solely to track registrations; you cannot use this number to track your case status in Case Status Online.

Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to: 1) register each beneficiary electronically for the selection process and 2) pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session. Through the account, they will be able to prepare, edit and store draft registrations prior to final payment and submission of each registration.

If USCIS receives enough registrations by March 20, we will randomly select registrations and send selection notifications via users’ USCIS online accounts. We intend to notify account holders by March 31, 2020.

An H-1B cap-subject petition may only be filed by a petitioner whose registration for that beneficiary was selected in the H-1B registration process.

For more information, visit H-1B Electronic Registration Process.

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Beware of Fake News Advisory

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Very recently, a fraudulent advisory was widely circulated on social media stating that all current and existing B1/B2 visas are being revoked by the U.S. Embassy. It also mentioned that new B1/B2 visa applications are no longer being accepted in view of the NCOV-19 and the termination of the Visiting Forces Agreement (VFA).

The U.S. Embassy was quick to deny the authenticity of the fraudulent advisory in a posting released on its official website:

The U.S. Embassy in the Philippines is aware of a fraudulent advisory alleging the cancellation/ revocation of tourist visas and the suspension of visa applications. These claims are NOT true.

Please note that U.S. visa policy in the Philippines has not changed. Impostors spread misinformation by claiming to be an official U.S. source. The official U.S. Embassy website at https://ph.usembassy.gov/ and our official social media platforms are the best sources for accurate and current information.

To report visa and passport fraud, please email FPMManila@state.gov.

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The Final Public Charge Rule and How It Will Affect You

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On February 5, 2020, the U.S. Citizenship and Immigration Services published its Final Rule on Inadmissibility based on Public Charge Grounds (final public charge rule). This final rule was released after the Supreme Court of the United States, on January 27, 2020, ordered the stay of the last nationwide injunction. This decision has the effect of allowing the Department of Homeland Security to implement this Public Charge Rule in all States except the State of Illinois where the U.S. Court of Appeals for the Seventh Circuit still enjoins implementation of this public charge rule.

Q. What is the public charge rule?

A. 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. The basis of the rule is found in section 212(a)(4) of the Immigration and Nationality Act (INA) and is referred to as the public charge ground of inadmissibility. This rule reflects Congress’ longstanding national immigration policy that aliens seeking to come to or remain in the United States are self-sufficient and will not rely on public benefits.

Q. What is the effectivity date of this final public charge rule?

A. This public charge rule is effective on February 24, 2020, and will apply to all applicants filing for adjustment of status, extension of stay, and change of status on or before that date ( except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy).

Q: What type of applicants will be affected by this final public charge rule?

A: Those who will be directly affected are applicants for immigrant and non-immigrant visas or those seeking to apply for green cards or immigrant visas through adjustment of status or through consular processing . Those seeking to apply for change or extension of non-immigrant status on or after February 24, 2020 are also subject to public charge rules. Also important to note, are green card holders who are seeking admission or have been out of the country for at least 180 days and re-entering the U.S. They will be examined also if they are considered public charge.

Q: Who are exempted from this final public charge rule?

A: The final 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).

Q: What is the difference between this final public charge rule and what have been followed by the USCIS for so many decades?

A: Prior to this new public charge rule , an applicant for green card may submit an Affidavit of Support accomplished by the Petitioner or a co-sponsor to indicate that the applicant will not be a public charge. This was sufficient under the prior rules. Now with the new public charge rule, an affidavit of support is just one of the factors taken into account. Instead, a totality of circumstances will be examined and the USCIS may now look into other factors such as employability, age, health and prior receipt of public benefits by the applicant as indicative that the applicants is more likely to become a public charge and be denied the green card application. Another difference, is the expansion of the meaning of public charge. This rule redefines the term ‘‘public charge’’ to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

Q. What public benefits are considered under this public charge rule?

A. As part of the public charge inadmissibility determination, USCIS considers both cash and non-cash benefits including:

  • Any federal, state, local, or tribal cash assistance for income maintenance such as:
    • Supplemental Security Income (SSI);
    • Temporary Assistance for Needy Families (TANF) which may be provided under another state name;
    • Federal, state, or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names);
  • Supplemental Nutrition Assistance Program (SNAP);
  • Medicaid (with some exceptions); federally funded Medicaid may also be provided under a state name;
  • Section 8 Housing Assistance under the Housing Choice Voucher Program;
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation); and
  • Housing under the Housing Act of 1937

Q. Will receipt of public benefit under Medi-CAL be considered under this public charge rule?

A. Only federally funded Medicaid will be considered in determining public charge. Medi-Cal is how the State of California delivers Medicaid to its residents. Some Medi-Cal services are provided to aliens under a state-only authority at no expense to the federal government.

If Medi-Cal is provided to the alien under a state-only authority at no expense to the federal government, it is not considered in the public charge inadmissibility determination.

Q: What if the applicant has been working in the United States with the proper and valid working visa, and later on had been approved for a green card, had a work authorization and had been paying all required taxes taken from his or her paycheck. And then an emergency happened — whether it be losing a job, or a medical emergency, which made the applicant access publicly funded benefits just at the time he could already apply for adjustment of status. Would this cause him to be inadmissible and his application be denied?

A. Medicaid benefits for medical emergency services are exempt from the definition of public benefits. But if this applicant continues to avail of the publicly funded medical services as defined in the regulation, s/he would likely be considered a public charge and this fact is a ground to deny the application for adjustment of status.

USCIS does not consider the following Medicaid benefits for purposes of the public charge inadmissibility determination:

  • Benefits paid for an emergency medical condition;
  • Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA);
  • School-based benefits provided to children who are at or below the oldest age of children eligible for secondary education as determined under State law;
  • Benefits received by an applicant under the age of 21; and
  • Benefits received by a pregnant applicant, including the period during the pregnancy and 60 days after the end of the pregnancy.

Q: Several factors are enumerated to determine inadmissibility based on public charge, how does a USCIS officer or consular officer determine if an applicant for a visa is more likely to become a public charge?

A: The public charge inadmissibility determination (the determination whether an alien is likely at any time to become a public charge) is a discretionary and prospective determination based on the totality of an applicant’s circumstances.

The burden of proof to establish admissibility during the process of seeking an immigration benefit is always on the applicant.

USCIS reviews all information provided in the Application to Register Permanent Residence or Adjust Status (Form I-485), including the Declaration of Self-Sufficiency (Form I-944), and the Report of Medical Examination and Vaccination Record (Form I-693) or the medical examination report in the U.S. Department of State (DOS) Form DS-2054 or Form DS-7794, as well as any other information provided in the record to determine whether the applicant is inadmissible on the public charge ground.

Q. What are the positive and negative factors that may weigh heavily on a visa applicant?

A. While admittedly the consular officers or USCIS examiners have wide discretion in determining public charge, there are also parameters on what positive and negative factors weigh heavily in examining the applicants :

Heavily weighted NEGATIVE factors:

  • No current employment, recent employment history, or a reasonable prospect of future employment;
  • Public benefit receipt at the threshold i.e. if the evidence indicates that the alien has received, or has been certified or approved to receive, one or more public benefit(s), for more than 12 months in the aggregate within the 36-month period immediately before the application is filed, starting on or after February 24, 2020
  • Medical condition and is uninsured and either lacks prospect of obtaining private health insurance or lacks the financial resources to pay for foreseeable medical costs related to such medical condition;or
  • The alien was previously found inadmissible or deportable based on public charge ground by an Immigration Judge or the Board of Immigration Appeals.

Heavily weighted POSITIVE factors:

  • Household has income, assets, resources, or support of at least 250 percent of the FPG for the alien’s household size;
  • Authorized to work and is currently employed with an annual income of at least 250 percent of the FPG for the alien’s household size; or
  • Has private health insurance

Q. If a visa applicant is found to be inadmissible based on public charge, is there a waiver or relief available to overcome this finding?

A. Generally, waivers of public charge inadmissibility are not available for immigrant visa applicants. The exception to this rule applies to (1) formerly S visa nonimmigrants on account of their witness or informant status and (2 )certain aged, blind, or disabled applicants for adjustment of status under INA 245A.

For non-immigrant applicants, S visa holders seeking admission are subject to a waiver of the public charge rule. All other nonimmigrants may seek waiver under INA Section 212(d)(3).

Q. If the visa applicant is not allowed a waiver or granted a waiver, are there other ways to overcome the public charge finding?

A. If an alien is determined to be inadmissible based on the public charge ground, but is otherwise admissible, he or she may be admitted in the discretion of the Secretary of Homeland Security, if otherwise admissible, upon the giving of a suitable and proper bond. USCIS will only exercise this authority in the context of adjustment of status applications in cases where adjustment would otherwise be granted but for the public charge inadmissibility.

A public charge bond is a type of immigration bond. A bond, including a public charge bond, is a contract between the United States (the obligee) and a natural person or a company (the obligor) who pledges a sum of money to guarantee a set of conditions imposed by the U.S. government concerning the alien (also called the principal). In the case of the public charge bond, the obligor pledges a sum of money to guarantee that the applicant will not become a public charge, as defined in the regulations.

Bonds may either be (1) Cash Bond or (2) Surety Bond. The minimum amount of public charge bond is $8,100.

Q: What repercussions would this expanded public charge rule have on immigrants including the Filipino American community?

A: The final public charge rule is obviously applied unfavorably to certain sectors of the population mostly the low income, seniors and disabled legal immigrants. As a result of these new rules, it is most likely that certain legal immigrants will be fearful of accessing public benefits. They will be compelled to make a choice of avoiding much needed medical help at the expense of their health just to keep their families together and prevent repercussions on their family members visa applications. In short, this policy places at risk the health and safety of families throughout the nation and that includes our Filipino immigrant community.

(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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2020 U.S. Immigration Outlook for Filipino Immigrants

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2020 is a Presidential election year. Whether the United States will have a new or a re-elected President, immigrants and their families will be facing major changes in immigration policies. Let’s examine and determine the prospects of 8 major immigration policy changes that may affect our Filipino immigrants.

The Filipino World War II Veterans Parole Program (FWVP)

The FWVP program was created in June 2016 in recognition of the extraordinary contributions and sacrifices of Filipino veterans during WWII. This program allowed their family members to join the veterans or their widows in the U.S. while their visa petition is waiting for visa availability. After 3 years, several hundreds of family members were allowed in on parole under the FWVP program. As part of the administration policy to eliminate parole programs, the USCIS announced in August 2019 that it will terminate the FWVP. Advocacy groups like the Asian American Advancing Justice, FilVetRep, and the Bayanihan Equity Center, among others, have been working hard to preserve the program. This 2020, unless the administration changes its mind about terminating the program, FWVP program will end after USCIS issuance of its final rules.

Increased USCIS Fees

In November 2019, USCIS announced that it will increase fees on petitions and applications. Among the many applications that are going to be affected are (1) Adjustment of Status application, an increase from $1,225 to $2,195; (2) DACA fees will increase from $495 to $765, an overall increase of 55 percent; (3) Naturalization application will increase by 83 percent, raising the fee from $640 to $1,170. Aside from the increase in fees, USCIS is eliminating fee waivers for naturalization, adjustment of status, green card replacements and renewal and employment authorization. The increase will take effect this 2020 and only after USCIS releases its final regulations.

Backlog in Family Petitions

As of November 2019, there are 291,392 approved visa petitions on behalf of Filipino nationals filed by their US citizens or green card holder relatives, awaiting visa availability with the National Visa Center. The backlog is still severe and there is still lengthy wait for visa availability in certain preference petitions. For Filipinos with petitions under the F3 and F4 visa category, the waiting period is more or less 21 years and for those whose petitions are F1 or F2B the waiting period is approximately 11 years. There are bills (RELIEF Act, S.2603 and H.R. 5327) pending before the 116th Congress which if passed will increase visa numbers and eliminate backlogs. Until these bills are passed into law, expect decades of waiting for certain petitions on behalf of Filipino nationals.

H1B Visa

On January 9, 2020, USCIS released its regulations on the registration system for H1B visa petitions. Instead of filing a full petition for a foreign national employee, the U.S. employer must complete a registration process that requires basic information about the H1B employer and the employee being petitioned. USCIS will open registration period from March 1 through March 20, 2020. Only those selected by USCIS lottery system will be able to file H1B petitions to meet the 65,000 cap.

Public Charge

Under the law, a visa applicant will not be allowed to enter the United States if the government believes that they are likely to become public charge or reliant on government assistance. In 2019, the USCIS issued a new definition of public charge rule to include those who receive either cash or non-cash benefits like housing or health care, from the government for more than 12 months during the 3 year period. The implementation of this public charge rule is suspended because of court litigation filed by several States and advocacy groups challenging the legality of the rule. The Supreme Court is expected to rule on this case this 2020. If the public charge rule takes effect, the legal impact will be on low income legal immigrants petitioning their relatives.

Deferred Action on Childhood Arrivals (DACA)

Deferred Action on Childhood Arrivals or DACA program was created in 2012 to grant young immigrants deferred status and employment authorization. In 2017, Trump announced that it was ending DACA. This resulted in several lawsuits filed against the administration challenging the decision to terminate DACA. The case was heard by the Supreme Court in November 2019 and a decision is expected anytime before June 2020. In the meantime, DACA recipients are allowed to renew their DACA status and employment authorization.

REAL ID

Beginning October 1,2020, federal agencies including Department of Homeland Security (DHS) and Transportation Security Administration (TSA) will only accept state issued driver’s licenses that are REAL ID compliant. This means that the state licensing agency must issue REAL IDs to those with valid identification and legal status. Those who are still in unauthorized status may not be issued READ ID compliant driver’s licenses and identification that will allow them to access federal offices or travel domestically through commercial airlines.

H2B Visa

In January 2019, nationals from the Philippines were banned from receiving H2B temporary working visas for one year. As of this writing, there is no update yet from the USCIS if in 2020, the Philippines will be allowed to become beneficiaries of new H2B visas.

These 8 immigration policies are just among the many policies that are anticipated to affect our Filipino immigrant community. The enforcement of immigration law has consistently been the highest priority of the Trump administration resulting in hundreds of thousands of ICE arrest since he took oath as U.S. president. After a decade, we still have not seen a major overhaul and change in immigration law. Hopefully, this 2020 decade, our leaders will finally pass a more humane and sensible immigration reform law; a more compassionate, relevant and rational one that will replace the dysfunctional immigration system we have right now.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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What’s in the Horizon for Filipino Officials and Individuals Subject to the U.S. Travel Ban?

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On December 20, 2019, President Trump signed a budget law known as the “Further Consolidated Appropriations Act of 2020” (Public Law 116-94). This law includes a provision that implements the Global Magnitsky Act which is a legislation that relates to significant steps that U.S. may take to protect and promote human rights and combat corruption around the world. Part of the sanctions under this Act is a U.S. travel ban of those individuals identified to have violated human rights .

The matter of applying this sanction on certain Philippine government officials responsible for the detention of Philippine Senator Leila De Lima is not mentioned specifically in the budget law signed by President Trump. However, it is found in the Senate Committee Report by reference stating that the Global Magnitsky Act provision banning from entry to the U.S. applies to Philippine government officials responsible for the detention of Senator De Lima. Committee Reports accompany most bills that become law and are sources of determining legislative intent. It can be inferred that the congressional intent is to include the officials responsible for the detention of Senator De Lima and apply the sanctions.

To expound further on the congressional intent, Senate passed S.Res 142 on January 8, 2020, “A resolution condemning the Government of the Philippines for its continued detention of Senator Leila De Lima, calling for her immediate release, and for other purposes”. Among the provisions of the resolution is the call to apply the sanctions of the Global Magnitsky Act to Philippine government officials responsible for the arrest and prolonged detention of Senator De Lima. Until resolutions are incorporated into a bill that becomes law, a resolution merely expresses the opinion of the Senate. They have no force of law.

But with the Committee Report and now the S.Res 142, it is more likely the sanctions of the Global Magnitsky Act will apply to government officials of the Philippines responsible for the arrest and detention of Senator De Lima. And if they apply, what is next?

Within 30 days from the date of the signing of the Consolidated Appropriations Act of 2020, the names of individuals that are included in the sanctions of the Global Magnitsky Act which includes a ban from entering the United States will be reported to the U.S. Congress and will be posted on the State Department website. This means those on the list will have visa applications denied, or be refused entry even if they have prior issued visas.

There will be no arbitrary process for inclusion in the travel ban list. The State Department should have “credible” information that government officials are involved in human rights violations or in the arrest and detention of Senator De Lima. The agency that decides who will be on the travel ban list is the Department of State. Assuming a government official and his/her family members are on the list, will this travel ban be a permanent bar?

Unless the grounds for denial of visas are based on espionage, sabotage or attempt to overthrow the U.S. government, most grounds of inadmissibility are subject to waivers. These include prior criminal convictions, public charge grounds, misrepresentation, fraud and prior removal. And if waivers are approved, the visa applicant may be approved for the visa and be allowed to enter the United States.

The same waiver may apply to those subject to the travel ban under the Global Magnitsky Act. The budget law specifically mentions that the Secretary of State, “may waive the application of paragraph (1) if the Secretary determines that the waiver would serve a compelling national interest or that the circumstances which caused the individual to be ineligible have changed sufficiently”. So if there is a compelling national interest or if the circumstances have changed, the travel ban will be lifted and visas may be issued again.

Since this will affect mostly government officials, there is also an exception to the application of the sanctions. The budget law states that the ban will not apply if the entry to the U.S. would further U.S. law enforcement objectives or is necessary to permit the U.S. to fulfill its obligations under the United Nations Headquarters Agreement and as long as it will not derogate U.S. obligations under applicable international organizations.

Given the above provisions, we can conclude that the travel bans are not absolute. To propose counter sanctions by requiring Philippines visas to U.S. citizens, including former Filipino citizens who are not dual citizens, is certainly within the exercise of prerogatives by the Philippine government. However, it may be fair game to ask if doing so is beneficial to Philippine interests considering that the majority of US citizen travelers to the Philippines would most likely be former Filipino citizens themselves and/or may discourage investments from US citizens or entities due to visa requirements.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Updates

Visas for Spouses & Minor Children of Green Card Holders Available for December 2019

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Normally, one has to be a U.S. citizen to be eligible to file a simultaneous I-130 petition and I-485 application for adjustment of status. Petitions by U.S. citizens on behalf of spouses, parents and minor children are considered as immediate relatives and visas are immediately available. In the last couple of months, the Visa Bulletin under the F2A visa category which covers petitions by green card holders for their minor children and spouses is reflecting a “current” visa availability. Filipinos who are green card holder petitioner’s in certain circumstances may also file simultaneous I-130 petition and I-485 adjustment of status under the F2A visa category.

Claire was petitioned by her mother under the F1B visa category. Her mother is a U.S. citizen who waited for more than 10 years before Claire was able to immigrate to the U.S. under the F1B visa petition. Claire has a minor child, Jason, but was not married to Nico, the father of her child.

When Claire immigrated in 2018 to the United States, she was able to take her minor child Jason with her. But Nico was left behind in Manila. Recently, Nico arrived in the United States on a student visa (F1), he is taking up Masteral Degree related to his career. Claire and Nico recently got married and Claire filed a petition for Nico under the F2A visa category (spouse of a green card holder) on December 1, 2019.

Nico regularly follows and reads the Visa Bulletin issued by the Department of State (DOS) to determine when his visa may become available. He noticed that for the months of F2A, the Final Chart on the Visa Bulletin shows that the F2A has the letter “C” on it. But the Filing Chart shows a 2009 priority date. What does the “C” status on the F2A category mean for Nico? Can Claire now file for his petition and simultaneously adjust his status?

Understanding the Two Charts on the Visa Bulletin

The monthly Department of State Visa Bulletin has two different charts. The DOS will post two charts per visa preference category. The charts are: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply).

According to the recently released November 26, 2019 policy guidance, when USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, generally, the Dates for Filing Applications chart will be used to determine when to file an adjustment of status application with USCIS. Otherwise, if the priority is current as indicated on the Application Final Action Dates chart, then the final action date chart must be used to determine when to file an adjustment of status application with USCIS.

This means that despite a cut-off date on Filing Chart (second chart), if the Final Action chart (first chart) shows a “C” or a current priority date for a visa category, the application for adjustment of status may be filed immediately for that specific month.

Going back to the case of Nico, who is the beneficiary of an F2A petition, since the Final Action chart indicates a C (or a current priority date), he may now file for an adjustment of status. This is because the C indicates that a visa is available for the month of December 2019. However, unlike immediate relative petitions of U.S. citizens, unless there is 245(i) eligibility, beneficiaries of F2A petitions must be in lawful status to be able to file for adjustment of status.

(Atty. Lourdes Santos Tancinco, Esq. is an immigrant advocate and a principal partner at 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 this website tancinco.weareph.com/old)

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Updates

USCIS Proposes to Adjust Fees to Meet Operational Needs

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WASHINGTON – The Department of Homeland Security will publish a notice of proposed rule-making in the Federal Register to adjust the U.S. Citizenship and Immigration Services Immigration Examinations Fee Account fee schedule.

Fees collected and deposited into the IEFA fund nearly 96% of USCIS’ budget. Unlike most government agencies, USCIS is fee-funded. Federal law requires USCIS to conduct biennial fee reviews and recommend necessary fee adjustments to ensure recovery of the full cost of administering the nation’s immigration laws, adjudicating applications and petitions, and providing the necessary infrastructure to support those activities.

“USCIS is required to examine incoming and outgoing expenditures, just like a business, and make adjustments based on that analysis. This proposed adjustment in fees would ensure more applicants cover the true cost of their applications and minimizes subsidies from an already over-extended system,” said Ken Cuccinelli, acting director of USCIS. “Furthermore, the adjudication of immigration applications and petitions requires in-depth screening, incurring costs that must be covered by the agency, and this proposal accounts for our operational needs and better aligns our fee schedule with the costs of processing each request.”

The rule proposes adjusting USCIS IEFA fee schedules by a weighted average increase of 21% to ensure full cost recovery. Current fees would leave the agency underfunded by approximately $1.3 billion per year.

The proposed fee rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners, and beneficiaries.
USCIS last updated its fee structure in FY 2017, by a weighted average increase of 21%.

For more information on USCIS and its programs, please visit uscis.gov or follow on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis), and LinkedIn (/uscis).

[Release Date: Nov. 8, 2019]