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More Immigration Petitions May Be Denied Outright Under New USCIS Policy

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On September 11, 2018, the U.S. Citizenship and Immigration Services started implementing a new policy with regard to the “Issuance of Certain RFEs and NOIDs”. The new Policy Memorandum was published on July 13, 2018 and is identified as PM-602-0163. Under this policy, USCIS examiners may deny an application, petition, or request without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

This new policy rescinded the long time rule enacted under the USCIS 2013 Policy Memo which required USCIS examiners to issue RFEs or Notices of Intent to Deny (NOID) if it appears that the petition is approvable upon submission of additional documents. The reason given by USCIS for the issuance of this policy is to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitions and requestors to be diligent in collecting and submitting requested evidence. Interestingly, the USCIS states that it is not intended to penalize filers of innocent mistakes or misunderstanding of evidentiary requirements. But implementing the policy as written in the new Policy Memorandum will have the effect of penalizing filers of “innocent mistakes” by depriving them of opportunity to correct the error. How is this new policy applied?

James, a U.S. citizen filed a petition for his spouse Jane. He submitted the accomplished forms I-130, G325s with supporting documents. When his petition is being examined, James appear to have had marriages and divorces prior to marrying Jane. He did not submit copies of his divorce decrees.

Before September 11, 2018, the U.S.Citizenship and Immigration Services will send a Request for Evidence providing James an opportunity to prove that he was indeed divorced by submitting certified copies of divorce judgment. After USCIS receives the requested documents, the petition will be approved. But with the new policy effective September 11, 2018, failure to show eligibility on initial filing will result in outright denial without an opportunity to correct it through an RFE. This means without proof of eligibility, the petition may be denied right away based on the new guidance. USCIS mentions in the published guidance that if the regulations, the statute or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no submission, the petition may be denied.

Immigration Benefits Affected

Petitioners and applicants who file immigration benefit applications with USCIS will be affected by this new policy. This includes the following applications and petitions filed after September 11, 2018: naturalization applications, all family based petitions, temporary work visas such as H1Bs, Os and other business related visas, immigrant petitions and adjustment of status under any preference category, or the Violence Against Women Act.

The new policy will make it easier for USCIS to deny petitions and applications. If the request for immigration benefit is denied under the new policy, a new application or petition may be re-filed with new supporting documents but they will be penalized with paying a new filing fee.

In June 28, 2018, there was another USCIS proposed policy that mandates USCIS to put in removal proceedings those individuals with denied applications and petitions if the effect of the denial would render the individual applicant or beneficiary to be in unlawful status. This will have a devastating effect on significant number of applicants or beneficiaries with denied petitions. Also, this will result in the unnecessary use of of government resources to put them in removal proceedings because most of these individuals would have their immigration benefits granted anyway if provided with the right opportunity to do so.

To avoid the harsh consequence of this new policy, one must be very diligent in preparing USCIS petitions and applications. Consulting with legal professionals before filing will be a prudent step in order to ensure that they are eligible for the benefits being applied for and that they have approvable applications and petitions.

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1-888-930-0808; email at law@tancinco.com, www.facebook.com/tancincolaw or visit website at tancinco.weareph.com/old.)

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Refusal of Visas Based on “Public Charge” Ground

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For many years, an Affidavit of Support is an essential document before a visa may be issued to an applicant seeking to enter the United States. What happens if the the affidavit of support is found to be insufficient? Why are many visa applicants now being denied despite submission of Affidavits of Support? What are the new changes in policy regarding public charge?

Public Charge Finding

A non citizen may become a public charge for inadmissibility or deportability if s/he has become primarily dependent on the government for subsistence or is proven to have (1) received public cash assistance for income maintenance or (2) institutionalization for long term care at government expense. Only 3 types of public cash assistance benefits are referred to become a public charge: (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.

Affidavits of Support Plus Other Factors

Before new policies took place, an Affidavit of Support should be sufficient to overcome a public charge ground for denial of the visa. This is a document executed by the Petitioner who will attest that she has sufficient assets and income to support the visa applicant. If the petitioner is unable to show financial capacity to support, a co-sponsor may submit an affidavit of support. The petitioner or the sponsor shall demonstrate that she has the means to maintain an annual income equal to at least 125 percent of the Federal poverty line. In addition, she has to agree to provide support to maintain the sponsored visa applicant at an annual income that is not less than 125 percent of the Federal poverty income line.

Early this year, the U.S. Department of State changed the policy on Affidavits of Support. It added now a provision on 9 FAM 302.8-2(B)(2) that states that an Affidavit of Support is one of the positive factors taken into account in the totality of the circumstances test and is not in itself sufficient to protect an individual from a public charge determination. The other factors that are to be taken into account are the applicant’s age health, family status, assets, resources, financial status, education and skills.

In addition to the totality of circumstances test that is currently being used, it is anticipated that in the next few months, the new public charge policy of the Department of Homeland Security will be published and implemented. The worst part of the new rule that is USCIS will count benefits received by the petitioner U.S. citizen and take it against the visa applicant to show a finding of public charge.

In applying the amendments to the public charge policy, using the totality of circumstances test, there are cases now where a visa applicant is denied for public charge ground upon finding that the co-sponsor who executed the affidavit of support has no familial relationship to the visa applicant. This means that if the co-sponsor is a friend and not the relative of the visa applicant, even if there is proof of sufficient means to support the applicant, visa applications are being denied.

While this new policy is being implemented, there is no basis under the law to require a co-sponsor to be a relative. INA § 213A(f) or 8 CFR§213a.2 does not include a relationship requirement for a joint sponsor. In addition, the visa applicant should not be denied outright of their visas if initially there is a public charge finding. There should be an opportunity to augment the record by submitting additional evidence to show that the applicant will not be reliant on government welfare upon arrival in the United States. A visa applicant improperly denied based on public charge finding should not simply accept the decision without seeking a reconsideration and having the opportunity to submit additional documents to contest the denial.

(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 or facebook.com/tancincolaw, or through this website.)

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3 Categories of Immigrants Who Risk Being Stripped of U.S. Citizenship

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The U.S. Department of Homeland Security announced in June 2018 the establishment of a Denaturalization Task Force within the U.S. Citizenship and Immigration Services (USCIS). The new USCIS office will focus on investigating cases of naturalized U.S. citizens and determine whether they will be recommended for denaturalization.

From among the 20 million naturalized U.S. citizens, who are at risk of being stripped of their U.S. Citizenship?

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.

In 2008, Operation Janus was launched by the Department of Homeland Security and identified 854 individuals who had prior removal order, criminal convictions who were able to naturalize. These individuals’ fingerprint records were missing from the centralized DHS database. Now the current administration is planning to refer 1,600 more cases to the Department of Justice for denaturalization.

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:

  • 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 occurred before and during the naturalization process.
  • 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.
  • 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 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.

These days the Immigration and Customs Enforcement (ICE) is not the only agency in charge of immigration enforcement. The USCIS, with the creation of the Denaturalization Task Force, is now also involved indirectly in enforcement matters. Likewise, 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 categories 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. If there is a possibility of denaturalization, prepare yourself to defend yourself in the federal court and, in the worst 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 or facebook.com/tancincolaw)

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Applicants With ‘USCIS Denials’ May Be Put In Removal Proceedings

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A person who is unlawfully present after his application, petition or request for an immigration benefit is denied may find himself in removal proceedings and eventually may possibly be deported. The U.S. Citizenship and Immigration Services (USCIS) released last week their two new policies with regard to the handling of denied applications and petitions for those seeking immigration benefits. These policy memos (PM-602-0050-1 and PM-602-0161) are referred as updated guidance to referring cases to ICE and issuance of Notices to Appear.

How are these new policy memos going to be implemented? What impact will these have on those seeking immigration benefits?

Paul entered the United States using a visitor visa. He sought an extension of his stay by filing an Application to Extend Status (I-539) because he was invited to speak in a conference on a date which was beyond his authorized stay. Paul continued to reside on a visitor visa in the U.S. even after his authorized period of stay hoping that his application will be approved and he will not lose status. Unfortunately, USCIS denied his application. Under the new policies, Paul will be put in removal proceedings because he is now in unlawful status.

Those seeking extensions of H1B visas and whose requests were denied may also suffer the same fate as Paul. Under the new policy, USCIS may issue NTAs and put those with denied petitions in removal proceedings.

There are thousands of applications and petitions filed with the USCIS by those who are present in the United States. They may be seeking to avail of some immigration benefits like an extension of non-immigrant stay, change of status, extension of working visas or adjustment of status from non-immigrant status to that of a lawful permanent resident. Most of the time these applicants, if they meet the eligibility requirements are approved and issued the requested valid status. However, with the recent policies, in the event the application or petition is denied, USCIS may issue a Notice to Appear and put the applicant in removal proceedings.

Other than cases of those unlawfully present whose application or petition are denied, the following categories of cases are also impacted by the new policies:

  • Cases where fraud or misrepresentation is substantiated and/or where an applicant abused any program related to the receipt of public benefit
  • Criminal cases where an applicant is convicted or charged with a criminal offense which is a ground of removability
  • Cases in which N400 or an Application for Naturalization is denied based on good moral ground or a criminal offense

These USCIS new policies will result in more cases being filed in removal courts. With more than 700,000 cases pending in immigration courts nationwide, additional filings of cases based on these USCIS policies will only make the backlog severe. The ICE is not the only agency involved in enforcement of immigration law. The USCIS, which used to be the agency that handles immigration benefits, has now been turned into an enforcement agency as well. With this additional role, the delay in adjudication of petitions is expected to happen impacting thousands of adjustment of status and naturalization applications.

With the ever-changing policies evolving at a very fast pace, it would be prudent for a prospective petitioner or applicant to have a serious discussion about his case with a trusted legal counsel. One must be able to assess the varying legal options that may be available to attain the same result without risking removal. Or perhaps one must have his case examined on whether it is even timely or worth pursuing an application or a petition with the USCIS. During these critical times and when it comes to immigration, there is no substitute for due diligence.

(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 or facebook.com/tancincolaw.)

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FAQ on Zero Tolerance Policy

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Question 1:
What is the “Zero Tolerance Policy” of President Trump?

LST:
Zero Tolerance Policy is referred to immediate prosecution and detention of illegal entrants specifically at the U.S.-Mexico border. This means that those attempting to enter the U.S. illegally will be detained and prosecuted.

Question 2:
How did the Zero Tolerance Policy result in the border crisis of separating children from their parents?

LST:
The tragedy occurred as CBP officers took custody of the parents and detained them while the children were also taken into government custody or foster parents. Since there is a case law that children may not be put in detention for a long time, the children are taken and been categorized as unaccompanied children, resulting in separation from their parents. This inhumane and cruel separation of more than 2,000 children resulted in outrage to U.S. citizens, the legislators, and the world in general.

Question 3:
Has the practice of separating the children stopped with the Executive order?

LST:
While it may seem to have stopped the separation, the policy had now changed from separation to incarceration of the family as a whole. Still the detention of family together is not a response to the border crisis. There must be alternatives to detention programs such as releasing them on bail while their cases are pending.

There are also certain provisions of the E.O. that are not clear.

First, there is no process indicated on how those separated will be reunited with their parents.
Second, there is a provision that says that family unity will be maintained where appropriate and depending on available resources. This does not eliminate family separation.
And third, there will be expedited prosecution of cases meaning that the due process to a hearing may be compromised considering that the person incarcerated will have difficulty finding their legal representatives or counsel.

Question 4:
From what countries are the border crossers?

LST:
Mostly these are the nationals of Central America like Guatemala, El Salvador and Honduras.

Question 5:
Will the Philippine nationals who are out of status be affected by all the policies that are being released by Trump?

LST:
The Filipinos who remain undocumented are still vulnerable since last year in January 2017 with the Executive action memorandum of apprehending certain unlawfully present individuals. Those who are encountered in ICE raids of places of work, those they encounter in certain places or who are arrested collaterally are still vulnerable. No one is safe, if there is a violation of immigration law such as overstaying. But if they are on the side of the law and have complied with the conditions of their stay, they should not be fearful.

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Pinoy Panawagan Special Today, with Atty Lou Tancinco

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Atty Tancinco June TFC Store event

Catch the PINOY PANAWAGAN Special today, June 15, with Atty Lou Tancinco, at The TFC Store, 2001 Junipero Serra Blvd, Daly City CA, from 6-7PM PST. See you there!

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Revocation of U.S. Passports of Certain Sexual Offenders

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On May 11, 2018, the Department of State released its final rules providing various changes on passport revocations. In addition to statutory grounds for revocation, the Department of State included revocation of passport of U.S. citizens who are convicted of certain illicit sexual conduct.

Richard, a 63 year old U.S. citizen traveled to the Philippines in 2012. Upon his return to the United States, his brother discovered child pornography saved on his computer. Evidence showed that Richard had sexually abused 2 minor children while in the Philippines. Richard was investigated, charged with child pornography and engaging in child sexual conduct in violation of 18 U.S.C. 2423. After hearing, Richard was sentenced to 190 years imprisonment.

Anti-Child Sexual Tourism

Child sex tourism (CST) involves people who travel from their own country to another and engage in commercial sex acts with children. Under the federal law, child sexual tourism carries heavy penalties even if the crime was committed by a U.S. citizen or a green card holder outside of the United States. The following are the illicit sexual crimes that may be committed abroad:

  • Engaging in illicit sexual conduct in foreign places – U.S. citizens and legal residents are prohibited from going to another country and molesting or raping a child, or paying to have sex with a child. This carries a sentence of up to 30 years in prison (18 U.S.C. Section 2423(c)).
  • Ancillary Offenses, makes it illegal to be involved in the child sex tourism industry (sex tour operator). If you violate this law, you could face up to 30 years in prison.18 U.S.C. Section 2423(d)
  • Production of Child Pornography outside the United States – makes it illegal to produce pornographic images outside of the US and import or intend to import them into the U.S. First time offenders face 15 to 30 years in prison for violating this law.18 U.S.C. Sections 2251(c) and 2260(a))
  • Sex Trafficking of children by force, fraud, or coercion – makes it illegal to knowingly obtain a child (whether they are American or foreign) and offer or coerce them to engage in any type of sexual activity for something of value – including money, favor, goods or other type of benefit. This carries 15 years to life in prison if the child was under the age of 14, and 10 years to life in prison if the child victim was over the age of 14 and under the age of 18 (18 U.S.C. Section 1591)

Following a conviction of the crimes described above, the Department of State shall revoke the U.S. passport of the criminal offender if the passport was used to travel abroad in the commission of the underlying offense. If the sexual offender is abroad and his passport is revoked while outside the United States, the U.S. Department of State may issue a limited validity passport for direct return to the United States.

In the case of Richard above, the revocation of the U.S. passport is the least possible consequence. This sexual offense is a shameful affront on the dignity of a child and his lifetime imprisonment conviction serves him right.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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USCIS to Recall Incorrectly Dated Green Cards

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On May 14, 2018, USCIS will begin recalling approximately 8,543 Permanent Resident Cards (also known as Green Cards) due to a production error. The Green Cards were for approved Form I-751, Petition to Remove Conditions of Residence for spouses of U.S. citizens. The cards were printed with an incorrect “Resident Since” date and mailed between February and April 2018.

USCIS will send notices to individuals who received the incorrect Green Cards and to their attorneys of record, if they have one. The affected individuals should return their incorrect Green Card to USCIS in the provided pre-paid envelope within 20 days of receiving the notice. They may also return their cards to USCIS field offices. USCIS will send replacement Green Cards within 15 days of receiving the incorrect card.

The recall does not affect these Green Card holders’ status as lawful permanent residents. If affected individuals need to travel internationally or prove their lawful permanent residence while they wait for a replacement card, they may contact the USCIS Contact Center at 800-375-5283 to determine if they need additional proof.

Spouses of U.S. citizens may apply for naturalization after three years of permanent residency and must meet other requirements. The incorrect date on these cards could lead applicants to wait longer than necessary to apply to become U.S. citizens.

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Latest Court Ruling Orders USCIS to Accept New DACA Applications

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After President Trump announced the termination of the Deferred Action for Childhood Arrivals (DACA) on September 5, 2017, several lawsuits were filed questioning the validity of the termination. Two court injunctions were already issued by the federal courts in San Francisco and New York ordering the USCIS to continue accepting renewals for the DACA protection. On April 26, 2018, another federal court in the District Court of Columbia also issued an injunction against the termination of the DACA program. With the latest injunction the court ordered USCIS to also accept new DACA applications.

Who will benefit from this latest court ruling?

Joshua entered the United States when he was 7 years old. When the DACA was announced in 2012, Joshua was only 10 years old. When Joshua turned 15 in December 2017, he was not allowed to apply for a DACA application. No new DACA applications were accepted after the announcement of the termination of the DACA protection in September 2017. This is the reason why Joshua has not applied for the DACA protection. Last week, Joshua heard about this new court ruling and wants to apply for the DACA protection and for an employment authorization card. What can he do?

Requirements for DACA

DACA was available to any undocumented young immigrant who:

  1. came to the United States when she was under the age of sixteen;
  2. had lived in the United States continuously since at least June 15, 2007;
  3. was enrolled in school or had graduated from high school or been honorably discharged from the military;
  4. had not been convicted of certain criminal offenses and posed no threat to national security or public safety; and
  5. was under the age of thirty. Young immigrants who are out of status, who met these criteria were eligible for renewable, two-year grants of “deferred action” on their removal from the United States.

Termination of DACA and the Lawsuits

On September 5, 2017, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA program. USCIS would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018.

On September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, the district court issued an order directing the government to partially maintain the DACA program. As a result, the USCIS issued guidance that they are accepting renewal applications.

On April 24, 2018, the U.S. District Court for the District of Columbia held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court ordered DHS to accept and process new DACA applications, as well as renewal DACA applications – however, it stayed its order for 90 days to give the government a chance to respond. The decision of the court differed from previous court rulings because it would affect new applications – i.e. initial applications from individuals who have never applied for DACA previously but who are eligible to apply.

After 90 days, Joshua will be able to file for a new DACA application as per order of the U.S. District Court by proving that he meets all the above eligibility requirements. While this is a positive development, DACA is only a temporary program and its future is very uncertain. It would be best if there will be a permanent path to citizenship for the Dreamers. At the moment, there are several bills before the U.S. Congress addressing this issue. The most appropriate bill that must be passed into law is the Dream Act (HR 3440 and S.1615). If passed into law, it will provide a path to naturalization to Dreamers after 5 years in conditional permanent resident status.

(Atty. Lourdes S. Tancinco is a San Francisco-based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)