On August 14, 2019, the Department of Homeland Security (DHS) released its new public charge rules that was to take effect on October 15, 2019. However, prior to the expected effectivity date, five courts issued nationwide injunctions temporarily prohibiting the implementation of the new public charge rules.
Meanwhile, on October 11, 2019, Department of State (DOS) amended its rules and aligns it with the definition of public charge under the August 14, 2019 policy of the DOS.
These rules are still in the interim and no final rules are in effect although draft forms have been released in anticipation of the changes (Form I-944 and DS5540).
While the initial impact is that consular officers or immigration officers are bound to follow the existing rules, has it actually affected how visa applications are being adjudicated on public charge issues? Let’s examine the case of Jerry.
Jerry was petitioned by her U.S. citizen mother 10 years ago. The visa petition is now current, and that Jerry was scheduled for a visa interview. His petitioner mother submitted an Affidavit of Support but has insufficient income. A Joint Affidavit of Support was executed by Jerry’s best friend, Ray, also a U.S. citizen. Ray as the joint sponsor has a business and has enough income. At the visa interview, the consular officer did not approve the visa application until documents are submitted that Ray will make good of his commitment to support Jerry. Why is it that additional information is being required from co-sponsors/joint sponsors? Isn’t it that new public charge rules are not yet effective?
Likelihood of Becoming a Public Charge
There are several grounds for denying visa applications. Among them are fraud/misrepresentation, certain commission of illegal acts or prior criminal convictions. Likelihood of becoming a public charge (INA 212(a)(4)) is one of the many reasons for denying visas based on family petitions. Unlike other grounds for denial, likelihood of becoming a public charge is prospective in nature. A person will be deemed to be a public charge if there is a likelihood that s/he will rely on government benefits as his/her main source of support.
Consular Processing v. Adjustment of Status
Public charge policy guidance applies differently for a visa applicant at the U.S. consulate/embassy abroad (consular processing) and for visa applicants inside the United States (adjustment of status). The rules that apply to consular processing are governed by the Department of State (DOS) policy while that of adjustment of status are governed by the Department of Homeland Security (DHS) policy.
In both consular processing and adjustment of status, the rule in place is found in the 2018 DOS policy guidance and the 1999 DHS policy guidance respectively. Under the latter, while other factors are taken into account in determining public charge, an affidavit of support is usually sufficient to overcome the finding of public charge.
Insufficient Affidavits of Support
DOS amended rules as of January 2018 and uses the totality of circumstances test in determining whether one is likely to become a public charge. It is worthy to note that for consular processing, the 2018 policy guidance uses the totality of circumstances test and that an Affidavit of Support is just one of the factors to be considered in determining whether an applicant is likely to become a public charge. Applicant’s age, health, family status, assets, resources, financial status, education and skills are taken into account too. Hence, diminished weight is given to an affidavit of support.
When there is a joint sponsor, a consular officer will evaluate the likelihood that this joint sponsor will voluntarily meet his/her obligations under the affidavit of support. That is the reason why sometimes, the relationship between the joint sponsor and the applicant is asked during the interview. And if there is no family relationship between them there will be a probability that the joint sponsor will not follow through with the obligation under the affidavit of support.
In the case of Jerry, it may be appropriate to document his joint sponsor’s willingness to comply with his obligations under an affidavit of support. Although preliminary injunctions are in place right now prohibiting the implementation of the new public charge rules, application of existing rules have been strictly enforced. Visa applicants must prepare sufficient documentation addressing other factors that are taken into account under the totality of circumstances test.
Prospective immigrant visa applicants based on family-based petitions were alarmed by the news requiring health insurance as a condition for the issuance of their immigrant visas. Filipinos who have been waiting outside the United States for their visas to become available were concerned on how they could possibly comply with this requirement. What is the proclamation about and what is the current update?
Erika waited for more than 20 years for her visa to become available. She had processed for her visa and is awaiting her interview before the consular officer at the U.S. Embassy in Manila. Her legal counsel said that there is a strong probability that she will be interviewed in November 2019. In October 2019, she read the news about Trump’s new proclamation. She became hysterical and was losing hope about being able to immigrate to the United States. She wants to know what she needs to do and if she needs to comply with the health insurance requirement.
Presidential Proclamation
On October 4, 2019, President Trump released the “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System”. This will have the effect of barring qualified immigrant visa applicants from receiving visas unless they establish that they will be covered by an approved health insurance within 30 days after entry or can show proof that the visa applicant has the ability to pay for the foreseeable medical costs. Thousands of prospective legal immigrants, including those from the Philippines, will be adversely affected by this proclamation.
Doe v. Trump Case
A coalition of civil rights litigators from the Justice Action Center (JAC), the American Immigration Lawyers Association (AILA), and the Innovation Law Lab, with Sidley Austin LLP providing pro bono assistance filed a lawsuit on October 30, 2019 before the United States District Court for the District of Oregon to halt the implementation of the Presidential Proclamation. The lawsuit rightfully claims that the Presidential proclamation is illegal. It unilaterally rewrites the immigration law, imposes a new ground of inadmissibility and creates requirements that are extremely difficult or impossible to satisfy by the prospective visa applicants. The proclamation, according to the complaint filed, exceeded the scope of President’s statutory authority and violates Constitutional separation of powers and equal protection principles.
As a result of the lawsuit and prior to taking effect on November 5, 2019, Judge Michael Simon of the U.S. District Court for the District of Oregon issued a temporary restraining order to prevent President Donald Trump’s from implementing this presidential proclamation.
Erika and prospective immigrant visa applicants should not be worried at this time about complying with the “No Insurance, No Visa” proclamation. With the temporary restraining order, consular officers may not require proof of health care insurance. However, this does not mean that the issue on public charge is not going to be addressed. It is important that during the visa processing the immigrant visa applicants have complete documentation, making sure that they are not likely to become a public charge upon their arrival in the United States.
(Atty. Lourdes S. Tancinco is an immigration attorney based in San Francisco CA and a partner at the Tancinco Law Offices. She may be reached at law@tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)
On August 12, 2019, USCIS released the new public charge rules. This will take effect in 60 days from publication or in October 2019. A “public charge” finding is a ground for inadmissibility or basis for denial of visas. An individual is considered a public charge if s/he is dependent primarily on government assistance for her/his subsistence.
Gel Santos-Relos, the popular, proficient journalist and broadcaster from Balitang America interviewed me on this new public charge rules. Here are my responses to her questions which also happened to be the most frequently asked questions on this issue.
Q: What is the difference between this new public charge policy and what have been followed by the USCIS for so many decades?
A: Prior to this new policy, 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 rules, 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). This rule defines the term ‘‘public benefit’’ to include cash benefits for income maintenance, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.
Q: What kind of applicants will be directly affected by this new ruling published by the DHS?
A: Those who will be directly affected are the 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 . 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: Any type of applicants who are exempted from this new ruling?
A: The published regulation excludes from the public benefits definition: 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.
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 continue 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.
Q: The provision on the new public charge rule states that “, the consular officer or the Attorney General shall at a minimum consider the alien’s-(I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills . .”. How are these measured? Or are these solely dependent on the impression or subjective determination of the consular officer or Attorney General?
A: While admittedly the consular officers or USCIS examiners have wide discretion in determining public charge, there are also parameters on what weigh heavily in examining the applicants. For example on age, applicants under 18 not accompanies or following to join a parent or guardian and or applicants advanced age is a negative factor. On the health factor, applicant’s chronic health conditions with high medical costs or that may prevent applicant from maintaining employment are viewed as negative factors.
Q: What repercussions would this expanded public charge rule have on immigrants including the Filipino American community?
A:The way these new public charge rule is drafted seemed to be designed to create fear and confusion among our immigrant communities. The unfortunate consequence is on those who really are in need of medical aid. As a result of these new rules, it is most likely that legal immigrants will be forced to avoid much needed medical help at the expense of their health just to keeping their families together and prevent repercussions on their family members. In short, this policy places at risk the health and safety of families throughout the nation and that includes our Filipino immigrant community.
Q: Immigrant rights advocates say this Trump Administration ruling should not just be rolled back, but that the public charge rule should totally be abolished. But would you agree that there are indeed some immigrants who abuse the system and just totally rely on the government for their needs? How should this be addressed?
A: The current rules are fine as they are and there is no need to change them. I do not want to see current public charge rule abolish but also I do not wish it be changed either. There is no need for this new public charge rule. Expanding the rules to prevent deserving immigrants from entering the United States to be with their family is simply cruel and unjust.
Q: Would this Final Ruling be in effect immediately? Is there anything the people can do to voice out their opposition to or support for this expanded public charge ruling?
A. The rule takes effect on October 15, 2019. There is a 60 day rule from publication before it takes effect. Those who are opposed to the public charge rules must contact their respective legislators to voice their opposition. Or they can also contact and support organizations that have filed lawsuits to abolish these new rules.
Atty Lou Tancinco discussing recent trends on US Immigration at the UPAAA and UPAAF Grand Reunion & Convention
Having been in the practice of immigration law for almost 3 decades, I have witnessed the many challenges that immigrants face under different administrations. While there were challenges in the past, I can say that as practitioners we are presented with tremendous difficulties trying to comprehend the general state of immigration at the present time ….. from children being separated from their parents at the border to the threat of termination of the reunification/parole program for Filipino veterans.
The population of Filipinos in the United States is approximately 3.4 million and 1.9 million of us are foreign born. Most of the Filipino immigrants arrive in the United States either through family or employment petitions.
Approximately 370,000 of Filipinos in the United States are living in unauthorized status. That means 19% of the Filipino immigrant population are out of status …. Which is about 3% of total overall 12 million unauthorized immigrants.
President Trump issued Executive Orders in January 2017 that are now the basis for DHS/USCIS policy changes. These executive orders are those involving Interior Enforcement, Exterior Enforcement and the Travel Ban.
ICE Heightened Enforcement
What is happening right now is that enforcement of immigration law is the priority over immigration benefits. Resources of the government are being re-allocated by increasing the budget for ICE over that of the USCIS. Unlike in the past administration, prosecutorial discretion was exercised by ICE officers and there was consideration given if a person in unlawful presence had a U.S. citizen spouse, parents or children. Now, it does not matter whether the person being arrested has US citizen immediate relatives, ICE may take anyone in custody if found in unlawful status. Trump announced ICE raids on millions of undocumented. This for sure created fear among those affected. However, after the announcement, there was intense dissemination on social media, on television and in various platforms of the due process rights even for those who are in unauthorized status. While the announcement was to arrest millions of undocumented, only a few hundred were apprehended.
There are serious effects on members of the Filipino community regarding the actual ICE arrests or the announcement of intended mass arrests. I have known a few number of families who decided to depart voluntarily from the United States to stay in the Philippines or explore their other options. It created fear and paranoia among many in our community forcing them to make hasty decisions to leave. Even those legal immigrants and U.S. citizens were afraid for the safety of their relatives.
Delay in Adjudications of Immigration Benefits
The new policies that are in place, with priority being placed on removal of unauthorized individuals, affected also legal immigrants and U.S. businesses. It is now taking a long time for USCIS to adjudicate petitions. The backlog of pending petitions and applications have increased in the last 3 years. Naturalization applications used to be adjudicated in 4-5 months, now it is taking one year here in the Bay Area. Other applications such as applications for employment authorizations, adjustments of status, change of status, advance parole are taking so long that it is not unusual to have adjudications taking more than a year.
Delays and the ensuing repercussions on the lives of individuals and U.S. businesses are significant, and these include job loss, loss of critical business contracts, delayed education, the inability to travel internationally for important family and business events, and the inability to renew driver’s licenses
H1B Visas Increase in RFE
With the Buy American Hire American policy laid out by the Trump Administration, it is now difficult to obtain approval of H1Bs because of heightened standards that are being imposed to qualify positions for an H1B. There is a surge of what you call the RFEs or Request For Evidence especially for computer related occupations. Many RFEs request information or documentation that has already been submitted, apply an evidentiary standard that goes beyond the regulatory standard of “preponderance of the evidence,” and are sometimes even followed by a second RFE raising new issues not previously flagged in the first RFE. With the surge in RFEs also comes the reported increase in denials of H1Bs.
These changes made it harder for U.S.employers to hire and retain foreign workers. Many professional Filipinos lose out on their opportunities to be petitioned by US employers, prompting them to explore options in other countries like Canada or Australia.
New Rules on Public Charge
On August 12, 2019 USCIS released the new public charge rules. This will take effect in 60 days from publication or in October 2019. A “public charge” finding as a ground for inadmissibility or basis for denial of visas An individual is considered a public charge if s/he is dependent primarily on government assistance for her/his subsistence.
Before the changes, the public charge rule was that a person who is dependent primarily on welfare or government assistance will be denied a visa if s/he availed of monetary public benefits such as (1) Supplemental Security Income or SSI for the aged, blind and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance, and (3) State and local cash assistance programs known as General Assistance (GA).
Under the new proposal the definition of public benefits in determining whether one is a public charge has been expanded. The additional public benefits are Medicaid (with limited exceptions for medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare part D low income subsidy, the Supplemental Nutrition Assistance Program (SNAP, or Food Stamps), institutionalization for long-term care at government expense, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing.
In addition, the new rule added the totality of circumstances test in determining whether one is a public charge. This means that USCIS examiner or consular officer may now examine varying factors that may lead them to the conclusion that the applicant for an immigrant visa is likely to become a public charge. These factors include applicant’s age, health, family status, assets, resources, and financial status, and education and skills.
Several community immigrant advocates had opposed the new proposals as being discriminatory against low income immigrants who may happen to receive some benefits because of sudden illness or they have unexpectedly lost their jobs due to economic downturns or changes in their company. In most cases. receipt of benefits is only temporary and simply served as a basic economic safety net to provide economic stability until the individual becomes self sufficient again. To count this safety net against them in their future application for green card is cruel and unjust.
Specific to Filipinos
As you can see, those that are targeted are not just the unauthorized immigrants but also the legal immigrants as well as U.S. citizens. There is even a denaturalization task force created to check on naturalized citizens records to see if there are grounds to re-open and denaturalized U.S. citizens if there was prior unresolved fraud or undeclared past criminal convictions.
H2 Visas
But there are also policies that are specifically targeted against Filipinos. These are the H2B visas.
Every year since 2008, the U.S. Department of Homeland Security and the Department of State publish a list of countries whose nationals are eligible to receive H2A and H2B visas. Philippines has always been on this list except for the current year 2019. In a surprising announcement through the Federal Register publication on January 18, 2019, the Philippines together with Dominican Republic (H2B only) and Ethiopia were deleted from the list. This means that no Filipino will be able to receive an H2 Visa beginning 2019. The reason for including the Philippines in the list of countries banned from receiving these visas is that more than 40% of the visa holders do not return to the Philippines after the expiration of their visas. However, what is not taken into account is that majority of these workers are victims of human trafficking. Instead of penalizing the Filipino workers by banning them from receiving working visas, why not punish these human traffickers by taking aggressive actions to run after the guilty instead of targeting the victims ?
The working visas impacted by this bad news are the H2A and the H2B visas.
H2A visas are working visas issued to perform agricultural labor or agricultural services of a temporary or seasonal nature. The farm labor includes the raising of livestock, any practices including forestry and lumbering incident to or related to farming operations, handling, planting, packaging to market or carrier for marketing.
H2B visas, on the other hand, are those applied for to work in non-agricultural labor. The type of jobs mostly availed by Filipinos who are temporary and seasonal work in the hotel or construction projects.
There are 66,000 visas that are issued each fiscal year. For the year 2017, Filipinos availed of 767 of the H2B visas and that was approximately a little more than 1% of the allocated visa. In rendering Filipinos ineligible of the H2B visas, there is not much impact on U.S. employers in general. However, the 1% is still important to Filipino workers and to their employers and that most of those affected are head of their families. If there is a genuine employer and employee relationship, despite the ineligiblity of Filipinos, their employers may still seek a reconsideration to qualify Filipino workers as a matter of discretion and on a case by case basis if it is in the U.S. interest for the Filipino worker to receive the H2B visa. A discretionary factor that may be taken into account is the worker’s prior admission as H2B and that the worker previously complied with the terms of the program.
Atty Lou Tancinco with UP President Danilo Concepcion, FUPFA Vice Chair Polly Cortez and CA Assemblyman Rob Banta at the recently concluded UPAAA Grand Reunion.
FWVP and the Filipino World War II Veterans
On August 2, 2019, the U.S. Citizenship and Immigration Services announced its plan to terminate the Filipino World War II Veterans Parole program or the FWVP. This program was conceived almost 3 years ago during the Obama Administration and is set to terminate in 2021.
The FWVP program since its inception has allowed veterans and their widows to live with their families on parole status. After serving under the U.S. flag during World War II without recognizing their sacrifices and granting them their benefits, the elderly veterans sought to have family unity during their twilight years. Through the FWVP, sons and daughters of veterans were able to provide the much needed care for their aging parents.
The latest announcement of the USCIS as it is published indicates that this is a “plan” much like the announcement made a couple of months ago that ICE plans to conduct “mass raid of millions of undocumented”. What this means is that there is no immediate termination of the FWVP, so all those who are on parole status under the FWVP must not fear having to immediately leave the U.S. at the expense of abandoning their elderly veterans or veterans’ widow.
The FWVP was intended for our Filipino World War II veterans, but based on our experiences at the Bayanihan Equity Center (f.k.a. Veterans Equity Center), hundreds of veterans passed away before they were even able to benefit from this program. With very few of them alive, why deprive them of the benefit of being reunited with their families? As a community, we have to continue to uphold our heroes’ dignity and not cut them from their much needed family support.
Pending Immigration Bills
There are many bills pending in Congress but let me mention 2 important ones:
1. The RAISE Act: Threat To Cut Family based legal immigration
On August 2, 2017, with the support of President Trump, Senators Tom Cotton (R-AR) and David Perdue (R-GA) introduced the Reforming American Immigration for a Strong Economy (RAISE) Act (S. 1720). This bill seeks to eliminate the immigration system that we know today and replace it with a points-based system that ignores the benefits of family unity and the needs of U.S. employers. Subsequently, on September 14, 2017, Congressman Lamar Smith (R-TX) introduced the Immigration in the National Interest Act (H.R. 3775), which is the House companion bill to the RAISE Act.
These bills would eliminate ALL family-based legal immigration categories except for spouses and children (under the age of 18) of U.S. citizens and permanent residents. This means, for example, that adult U.S. citizen children would be denied the opportunity to permanently sponsor their parents, a direct attack on the family. The temporary visa proposed by these bills for parents of U.S. citizens is simply not enough.
2. BELIEVE ACT
Senator Rand Paul (R-KY) introduced on July 11, 2019 the Backlog Elimination Legal Immigration Employment Visa Enhancement (BELIEVE) Act. (S.2091). It improves the system as far as the skilled immigration is concerned by increasing the number of green cards that will be issued to employment based immigrants without affecting other visa categories.
There are three important elements: First, it will greatly eliminate the backlog by increasing the worldwide limitation of employment based visas from 140,000 to 270,000. Incidental to the increase, the per country limitation of 7% is eliminated. Second, it alleviates the health care worker shortages because it exempts the Schedule A, Group 1 from being counted in the worldwide limitation. And lastly, this bill provide protections to spouses and children of certain non-immigrant work related visas. The children of E, L and H will be able to apply for permanent resident status as long as they meet certain eligibility requirements.
We all know that most registered nurses are not eligible for the H1B visa and so exempting this category from the numerical limit will mean that more RNs may be hired without facing visa backlogs. This bill if passed into law would create a faster process for RNs and PTs to immigrate in the U.S. so that they will be able to fill in the shortages.
Call To Action
WHO WE ARE: This nation is built by immigrants and unless you are an American Indian, it does not matter whether you are a US citizen at birth or a naturalized U.S. citizen you will always be an immigrant. Today, I heard mass and the priest mentioned very timely reminder, “know who we are, what we are and what we can share”. We are immigrants, we are alumni of a great institution, and we have the power to help make changes.
PARTICIPATE: As the leaders of our community, we have to participate in ways that will contribute to positive changes. The most concerning trends are those who that affect family, the policies that foster family separation. We have to work together to send a strong message to the administration to preserve families, stop the unjust and inhumane treatment of immigrants.
CONTRIBUTE: Only when we are in an environment where families are valued, important contributions, skills and talents are recognized are we able to nurture the future immigrants of this nation. And we are strong where we are, I am sure we are able to share and give back to the institution that brought us to where we are right now. We are U.P. alumni, iskolar ng bayan, matapang, matalino. We are part of the solution. We shall participate.
Thank you to The Organizing Committee of UPASF and UPAAA under the leadership of Sonia Delen and Nelsie Parrado for this opportunity to speak.
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Speech delivered by Lourdes “Atty Lou” Santos Tancinco during the UPAAA Grand Reunion and Convention last September 1, 2019 at the Crowne Plaza Hotel, Burlingame, CA. Atty Lou is an alumna of the University of the Philippines. UPAAA is the University of the Philippines Alumni Association in America.
On August 2, 2019, the U.S. Citizenship and Immigration Services announced its plan to terminate the Filipino World War II Veterans Parole Program (FWVP). This program was conceived almost 3 years ago during the Obama Administration and is set to terminate in 2021.
Will the announcement last week pre-terminate the program? What will happen to the families of Filipino veterans who have pending or approved FWVP?
Understanding the FWVP
Upon hearing the news of the USCIS plan to terminate the FWVP, several veterans’ advocates in our community were alarmed by its adverse impact on our elderly Filipino veterans and their families. Indeed, the FWVP was conceived by former President Obama as part of its 2015 Modernizing and Streamlining of the Immigration System. At the time, there was a mandate to allow certain families of Filipino veterans to enter the United States and the legal way to address this was to allow the families on urgent humanitarian reason or significant public benefit.
The FWVP program since its inception has allowed veterans and their widows to live with their families on parole status. After serving under the U.S. flag during World War II without their sacrifices recognized and their benefits granted, the elderly veterans sought to have family unity during their twilight years. Through the FWVP, sons and daughters of veterans were able to provide the much needed care for their aging parents.
No Immediate Termination of the FWVP Until Further Notice
The latest announcement of the USCIS as it is published indicates that this is a “plan” much like the announcement made a couple of months ago that ICE planned to conduct “mass raids of millions of undocumented.” What this means is that there is no immediate termination of the FWVP, so all those who are on parole status under the FWVP must not fear having to immediately leave the U.S. at the expense of abandoning their elderly veterans or veterans’ widow.
Put in the context of the DACA rescission in 2017, a change in policy may not take place immediately without violating constitutional due process. Lawsuits are still pending on DACA rescission and DACA recipients continue to receive their employment authorization document.
So unlike the rescission of the DACA program, the USCIS clearly indicated that it will allow the current FWVP parole beneficiaries to maintain their current period of parole through expiration. Also, those who have pending FWVP requests with the USCIS will be processed to completion.
Renewal of FWVP
There is no mention in the announcement that renewals or new applications may be filed. Until and unless there is a clear guidance on how renewals or new applications are processed, USCIS at its discretion should consider adjudicating these applications. At the very least, if these are not processed under FWVP, they may be filed and classified as “non-categorical” or the general grant of humanitarian parole, which may not have the same ease of USCIS approval compared with those filed under a categorical parole such as the FWVP.
The FWVP was intended for our Filipino World War II veterans, but based on our experiences at the Bayanihan Equity Center (f.k.a. Veterans Equity Center), hundreds of veterans had passed away before they were able to benefit from this program. With very few of them alive, why deprive them of the benefit of being reunited with their families? As a community, we have to continue to uphold our heroes’ dignity and not cut them down of their much needed family support.
There is good news for visa applicants under two visa categories. For the July 2019 Visa Bulletin, applicants from the Philippines who are waiting for their priority dates to become current under the F2A and EB3 category will benefit from the “current” availability of priority dates.
F2A visa categories are spouses and minor children of lawful permanent resident while EB3 categories are the professionals, skilled workers and other workers. The published July 2019 visa bulletin indicates that the F2A and EB3 categories’ priority dates are current.
Generally, a visa applicant may initiate the application for visa and be interviewed for his/her eligibility when a priority date is current. The immigration process undertaken may either be an application for adjustment of status for those who are already present in the United States or through consular processing for applicants who are still in the Philippines.
Perplexing – Current But With Cut Off Date?
The spouses and minor children of lawful permanent residents who have approved I-130 petitions with priority dates that are current may initiate either adjustment of status or consular processing. The fact that is it current means that a visa is available. However, if one reads the July 2019 visa bulletin, what is noticeably unusual is the date under the ”filing” chart. While the “final” chart clearly shows that priority date under F2A as current, the filing chart indicates a cut off date of March 8, 2019. So even if the priority date is current, F2A beneficiaries with March 2019 are the only ones who may adjust or undergo consular processing.
Charles Oppenheim of the U.S. Department of State stated that the cut off date of March 2019 “filing” chart was done intentionally to avoid completely opening floodgates to consular filings under this category. He also explained that moving the final action date to current is intended to spur responses to the NVC letters but it is not expected to have any impact on the number of usage for the current fiscal year (FY2019). What this means is that F2A beneficiaries from the Philippines may start the consular processing but since the number of visas are still the same, there may be a possibility that this F2A category will retrogress again in the coming months. Those who are mostly likely to benefit are those with priority dates of March 8, 2019 under the F2A.
EB3- Visas Available But Only for a Limited Time
Employment-based third preference, or most commonly known as EB3 category, is the classification for professionals, skilled workers and unskilled workers. Most healthcare professionals fall under this category like the registered nurses, physical therapists and occupational therapists. Other workers under this category includes unskilled workers or those who do not require bachelor’s degrees such as the caregivers.
Unlike the F2A visa categories, the filing and final charts under the EB3 category indicate that the status is “current”. Filipinos who have EB3 visa petition approvals are now ready for visa processing this month of July 2019.
Given these positive changes this month of July, Filipinos with approved petitions under the F2A and EB3 categories must take immediate action to take advantage of this noteworthy update on the visa bulletin. There is a short window to file between now and the end of July 2019. According to Mr. Oppenheim, It is anticipated that the final action date for EB3 will retrogress again next month.
President Trump’s tweet on June 17, 2019 that millions of immigrants are going to be deported beginning next week is once again a threat to hundred thousands of Filipino immigrants who are without legal status. While interior enforcement of immigration law has been Trump’s administration priority, mass deportation was not really fully effected perhaps because of lack of ICE resources or some constitutional issues. If indeed ICE is now ready to “remove millions of undocumented immigrants’’, revisiting their rights becomes of utmost importance.
The Immigration Legal Resource Center based in San Francisco CA released the Know Your Rights below which may be asserted if the inescapable ICE visit or arrest takes place.
You have the right to remain silent.
You can assert your fifth amendment right. You can refuse to speak to an ICE agent. Do not answer any questions, especially about your birth place, immigration status or how you entered the United States. Say that you want to remain silent until you speak with a lawyer.
You have the right to demand a warrant before letting anyone into your home.
The ICE agent may not enter your home without a warrant. You do not have to give permission for him to enter. It is okay not to open your door unless the agent shows you the warrant. If the warrant is presented to you, ask the agent to slip it under the door or through the window. Make sure it is signed by a judge with your correct name, address and date of birth.
You have the right to speak to a lawyer and the right to make a phone call.
It is important to have your attorney’s phone number handy. You will be entitled to make a phone call. If you do not know your attorney’s number, call a trusted friend or relative to coordinate with your attorney.
You have the right to refuse to sign anything before you talk to a lawyer.
There will be some documents that will be presented to you for signing after you are apprehended and taken into custody.. Do not sign anything. If you sign without understanding the nature of the document, it is possible that you are signing a waiver of your rights to a lawyer or to a hearing. And if you waive these rights, it may result in your immediate removal without a hearing.
You have the right to refuse to show any documents before speaking with a lawyer.
When you are visited by an ICE agent, you do not have to give permission to search any of your belongings unless there is a warrant. You can ask to speak with a lawyer before you submit any documentation.
Each case of an unauthorized individual is distinct and all non-U.S. citizens must be vigilant about their rights. Considering the threat of a mass apprehension, it is worth exploring legal options with a trusted professional immigration attorney and from there decide on an appropriate course of action to obviate fear of possible removal.
The U.S. Department of State recently announced that the visa application forms were revised to include additional questions relating to applicants’ social media platforms. What will a prospective visa applicant anticipate by this social media monitoring? Will there be more visa denials as a result of this added scrutiny by the consular officer?
Social media screening rules were first published by the Department of State on March 30, 2018 in response to the current administration’s 2017 Presidential Memorandum calling for heightened vetting of new immigrants. The forms that were revised to conform to these changes are DS160 and DS156 for non-immigrant visa applicants and the DS260 for immigrant visa applicants.
An applicant for U.S. visa may notice that when downloading the revised forms, additional information, under “Address and Phone Information” page, are required. There is a list of multiple social media platforms and among those listed are: Facebook, Google+, Instagram, LinkedIn, Pinterest, Twitter, YouTube. The applicant must click the platforms he had in the last 5 years from date of application and provide any identifiers used. If the platform used is not on the list, the applicant will be given the option to provide information about any social media identifiers associated with any other platforms. Exempt from this requirement are social media accounts of multiple users within a business or other organization.
Only identifiers such as usernames/user IDs, handles, screen-names tied to the social media accounts are required. Passwords will not be asked and applicant must not voluntarily reveal the passwords. Also, if the applicant has a social media presence and does not wish to reveal it on the form he cannot delete his account or answer “none”. If this is done, the applicant will most likely deny the application for misrepresentation if the consular officer subsequently discovers prior use of a social media platform. So it is advisable to be revealing all platforms used when accomplishing the form.
Other questions seek five years of previously used telephone numbers, email addresses, and international travel; whether the applicant has been deported or removed from any country; and whether specified family members have been involved in terrorist activities.
Knowing that social media content is easy to misinterpret, what standards in reading content will be used by consular officers to determine a threatening message and in assessing eligibility for the issuance of a visa? What if the visa applicant erroneously sent a happy emoji to a posting of another user condemning a tragic incident? Will this visa applicant become a suspect? Will there be biases on postings expressing differing religious and political views? Social media content is very vulnerable and may be magnified and taken out of context. At this point, it is too late for visa applicants to start sanitizing their postings and social media presence. There should be freedom of expression on any medium and this new disclosure requirement should not serve to curb protected speech of visa applicants. Perhaps, the least that could be done by prospective travelers is to stay vigilant and be more mindful of their postings.
The current visa vetting system before these disclosure requirements is very thorough and as it is, it is known to identify national security threats. It remains to be seen whether these new disclosures will enhance national security.
Beginning July 5, 2019, the U.S. Citizenship and Immigration Services (USCIS) field office in Manila will be closed. Visa applicants and those who have pending visa petitions were alarmed by this recent development. It is important to note that the processing and issuance of visas will still continue at the U.S. Embassy in Manila through its visa services unit. USCIS and the U.S. Embassy have distinct responsibilities when it comes to immigration.
The USCIS
The USCIS is an agency within the U.S. Department of Homeland Security (DHS) and administers the country’s naturalization and immigration system. USCIS field offices such as the one in Manila handle immigration petitions such as petitions for immediate relatives (I-130), Application for Travel Document (Carrier Documentation), Abandonment of Lawful Permanent Resident Status (I-407), among others. The USCIS announced that individuals who were previously assisted in its Manila field offices before June 3, 2019 must follow new filing instructions that may be found on their website (www.uscis.gov).
The U.S. Embassy
The U.S. Embassy is under the U.S. Department of State (DOS) has varying responsibilities in immigration law which include non-immigrant visas, immigrant visas and anti-fraud activities related to the administration of visa issuances among others. The U.S. Embassy handles applications and the issuance of visas.
Both immigrant and non-immigrant visa processing with the U.S. Embassy will continue despite the closure of the USCIS office. General information about the U.S. Embassy Manila is available on the embassy’s website (https://ph.usembassy.gov).
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