Author: tancincowp

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Updates

Re-written Travel Ban Released March 6, 2017: Green Card Holders and Visa Holders are Exempt

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An Executive Order titled Protecting the Nation from Foreign Terrorist Entry into the United States, which is the re-written travel ban, was signed by President Trump on March 6, 2017. The prior travel ban, Executive order 13769 of January 27, 2017, will be revoked on March 16, 2017.

This travel ban covers on 6 countries and Iraq was taken off the list. Also, green card holders and visas from these 6 countries are not affected by the new travel ban.

Travel Ban for Nationals of 6 Countries

For the next 90 days, foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the United States on the effective date of the order, do not currently have a valid visa on the effective date of this order, and did not have a valid visa at 5:00 eastern standard time on January 27, 2017, are not eligible to travel to the United States. The 90-day period will allow for proper review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals.

Iraq Nationals are Exempt from the Travel Ban

As a result of this increased information sharing, Iraqi citizens are not affected by the Executive Order. Of course, all normal immigration processing requirements continue to apply, including the grounds of inadmissibility that may be applicable.

Green Card Holders and Visa Holders Exempt from the Travel Ban

The Executive Order does not apply to certain individuals, such as lawful permanent residents of the United States; foreign nationals admitted to the United States after the effective date of the order; individuals with a document that is valid on the effective date of the order or any date thereafter which permits travel to the United States; dual nationals when traveling on a passport issued by a non-designated country; foreign nationals traveling on diplomatic, NATO, C-2 for travel to the United Nations, G-1, G-2, G-3, or G-4 visas; and individuals already granted asylum or refugee status in the United States before the effective date of the order.

Visas to Be Issued on Case by Base Basis

DHS and the Department of State have the discretionary authority, on a case-by-case basis, to issue visas or allow the entry of nationals of these six countries into the United States when a national from one of the countries demonstrates that the denial of entry would cause undue hardship, that his or her entry would not pose a threat to national security, and that his or her entry would be in the national interest.

Country by Country Review of Identity and Security Information

In the first 20 days, DHS will perform a global, country-by-country review of the identity and security information that each country provides to the U.S. Government to support U.S. visa and other immigration benefit determinations. Countries will then have 50 days to comply with requests from the U.S. Government to update or improve the quality of the information they provide.

Refugee Program Suspended for 120 Days

Similarly, the Refugee Admissions Program will be temporarily suspended for the next 120 days while DHS and interagency partners review screening procedures to ensure refugees admitted in the future do not pose a security risk to the United States. Upon resumption of the Refugee Admissions Program, refugee admissions to the United States will not exceed 50,000 for fiscal year 2017. The Executive Order does not apply to those refugees who have already been formally scheduled for transit by the State Department. During this 120-day period, similar to the waiver authority for visas, the Secretary of State and Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the entry of such individuals as refugees is in the national interest and would not pose a threat to the security or welfare of the United States.

Uniform Screening for All Immigration Programs

The Department of Homeland Security, in conjunction with the Department of State, the Office of the Director of National Intelligence, and the Department of Justice, will develop uniform screening standards for all immigration programs government-wide as appropriate and in the national interest.

Improving the Entry-Exit System

The Secretary of Homeland Security will expedite the completion and implementation of a biometric entry-exit system for all in-scope travelers entering and departing the United States. As part of a broader set of government actions, the Secretary of State will review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal.

Visa Waiver Program to be Restricted

The Department of State will restrict the Visa Interview Waiver Program and require additional nonimmigrant visa applicants to undergo an in-person interview.

Effective Date

The Executive Order is effective at 12:01 A.M., Eastern Standard Time, on March 16, 2017.

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Updates

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

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Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.

We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

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Source: USCIS

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Global Pinoy

Love of Family Is their Underlying Reason for Staying

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A significant number of Filipino immigrants have thrived and have become productive U.S. citizens or lawful permanent residents. Yet, there are categories of immigrants who, despite having resided in the U.S. for many years could not find ways to obtain legal status. The immigration system is dysfunctional and that there is no pathway to obtaining legal status.

Angela was able to enter the U.S. on an H1B visa but worked only for a year. Her U.S. employer suffered financial setbacks during the recession in 2008 and Angela was laid off from her job. When this happened, she was pregnant. His son who was born in the U.S. with a congenital heart problem that requires regular medical attention. The U.S.citizen father of the child abandoned Angela. She continued to work in the U.S. but only as a caregiver to be able to provide for the support of her child. Angela admits that it was wrong to stay without legal status but her decision to stay was motivated by her desire to ensure her son’s well being. She knows that she will not be able to afford medical treatment in the Philippines. Angela has no history of arrest or any criminal arrest. She takes care of elderly patients. With the new immigration policy, she fears that she will be arrested and be deported. She fears that her son’s health condition will worsen if she is sent back to the Philippines.

Amando is a son of a Filipino World War II veteran. Many Filipino veterans immigrated without family members and lived in isolation. Amando was able to come to the United States on a B2 visa. He took care of his father and was present at his father’s deathbed. Unfortunately, Amando’s B2 visa expired during the time he was taking care of his father. If he returns to the Philippines, it will take more than 10 years before he could return to the United States because of the 3-10 year bar rule. He is taking care now of his aging mother who likewise needs his presence and support just like his late father. Amanda has an approved petition but unfortunately, the visa petition will take more than 15 years for the visa to become available. Amando decided to stay in the United States to care for his mom. With Trump’s policy, Amando is at risk of being arrested and removed.

Angela and Amando are profiles of undocumented immigrants whose future in the United States is uncertain with the current political climate. The Department of Homeland Security stated that they will prioritize for removal those who poses threat to national security and public safety. But the recent DHS rules do not reflect such priority. The 11 million undocumented are at risk of being removed if they are caught by ICE without the proper legal documents to stay. This will include those who have same cases as Angela, and Amando who are neither threat to national security or public safety. Their only intention of continued stay is to be with their families, their U.S. citizen children or parents.

Hopefully, the present administration will desist from stereotyping unauthorized immigrants and look at the lives of these ordinary family-loving people through a different lens.

(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based law firm and may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Global Pinoy

Green Card holders’ legitimate worries about traveling outside US

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Despite clarifications by government agencies that Green Card holders are good to travel, many Filipino immigrants currently in the United States or those visiting the Philippines are still confused by the conflicting information they are getting, unsure of what to expect upon their return to US ports of entry. The two Filipino cases below are illustrative of the concerns of many Green Card holders.

The first is from 73-year-old “Jose” who plans to visit his relatives in the Philippines:

“I am a green card holder and my card will expire on February 21, 2017. I already filed for naturalization on May 5, 2016 and had my biometrics taken in June 2016. My problem is that I do not have an interview notice yet and I will not have a valid proof of status after February 21, 2017. I want to go the Philippines for a vacation to visit my family, but I am afraid that immigration officials will take me into custody after my return. What should I do?”

Another email was received from “Rose,” asking if Green Card holders would encounter problems returning to the United States, she writes:

“My father-in-law is a Green Card holder and he left for Manila six months ago and he is returning home to US next month. Will he encounter any problem when he re-enters the US? Please advice.”

In the first case of Jose, it will be best for him to obtain his naturalization certificate and get a US passport. Unlike during pre-election time when processing of naturalization was only taking around 3-5 months, the processing for naturalization is now taking an average of 8-9 months (or longer). Since Jose filed his naturalization application in May 2016, he should be expecting his interview notice soon. The fear of traveling and being taken into custody is brought about by recent misinformation. If he wishes to travel without waiting to be naturalized, he should first file for an extension of his Green Card and obtain a new one with a new validity date. It will indeed be difficult these days to travel without proper documents indicating legal status.

In the second case, Rose’s father-in-law, he should be returning to the United States without fear of encountering immigration problems since the Philippines was NEVER a designated country in the Trump Executive Order.

Possessing a Green Card during one’s travel to the United States is generally proof of legal status. But since permanent residents are still non-U.S. citizens, they are still vulnerable to restrictive immigration policies. A number of relevant provisions of US immigration laws may still subject a Green Card holder to ground of inadmissibility; or, removability in cases where there is a history of removable offenses; or, if there was prior fraud or misrepresentation in obtaining the resident status.

A familiar scenario for many elderly Green Card holders is the possible abandonment of resident status. This applies to Green Card holders who live abroad for lengthy periods of time and spend only short, periodic visits to the United States. These Green Card holders must file re-entry permits before departing the United States. Otherwise, they risk a finding of abandonment of their Green Card resident status. If a CBP (Customs and Border Protection) officer finds out that there is a lengthy stay abroad, he may require the Green Card holder to accomplish an abandonment of status form before they are allowed in. This form must never be signed without consulting with an attorney.

With the fast issuance of Executive Orders, haphazard implementation of these orders, ever-changing interpretations of these orders, as well as the spread of fake news, it is now more important than ever to know one’s legal rights and get accurate information from reliable sources.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney and may be reached at law@tancinco.com, facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808)

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Updates

Know Your Rights in Case of ICE Arrest

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Executive Order 13768 of January 25, 2017 Enhancing Public Safety in the Interior of the United States signed a few weeks ago has the effect of practically criminalizing all those who are in unlawful status. As a result, most of the 11 million immigrants in unauthorized stay are fearful about their possible apprehension and removal. Whether or not this fear is real, knowing one’s rights in the event of an Immigration Customs and Enforcement (ICE) raid or visit is important.

Below are the “Know Your Rights” information being disseminated by Immigration Legal Resource Center and other non-profit organizations 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. During these challenging times, a legal advice from a professional immigration attorney becomes indispensable to figure out what legal options may still be available.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney at Tancinco Law Offices and may be reached at law@tancinco.com, facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808)

Categories
Updates

ADVISORY: Southern Philippines is NOT covered by Trump’s Executive Order 13769

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TLO Advisory #2: Southern Philippines is NOT at this time a designated ‘country’ covered by Trump’s Executive Order 13769 of January 27, 2017 Protecting the Nation From Foreign Terrorist Entry Into the United States.

Here is a statement from our Executive Director Benjamin Johnson of the American Immigration Lawyer’s Association:

“Contrary to rumors apparently circulating, AILA National has no confirmation of additional countries being added to the travel ban. The executive order anticipates that additional countries could be added. Clearly it is impossible to guess where, when, or how the president will use this authority.”

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Updates

ADVISORY: Filipino green card holders not covered by travel ban

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TLO ADVISORY #1: Filipino nationals who are green card holders are NOT covered by the travel ban of Trump’s January 27, 2017 Executive Order. Unless there are issues on your immigration history such as fraud, criminal convictions or proof of abandonment, Filipino green card holders will be allowed to enter the United States.

Secretary John Kelly of the Department of Homeland Security issued this statement on January 29, 2017: “In applying the provisions of the president’s executive order, I hereby deem the entry of lawful permanent residents to be in the national interest. Accordingly, absent the receipt of significant derogatory information indicating a serious threat to public safety and welfare, lawful permanent resident status will be a dispositive factor in our case-by-case determinations.”

If you have doubts about your legal permanent resident status (green card), you may consult with your immigration counsel before traveling.
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Updates

We’re now facing Trump’s harsh immigration policies

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After eight years of being accustomed to the Obama Administration’s compassionate and humanitarian immigration policies, we’re now witnessing a 180-degree. Enforcement of immigration law will soon be heightened not only against aliens with criminal convictions, but to practically all who are violators of immigration law, including those who have overstayed their visas and those who have committed acts that are considered misdemeanors.

The Executive Order signed on January 23, 2017 relate to border security, admission of refugees and immigration enforcement. Building a physical border wall that extends 2,000 miles along the border with Mexico will cost taxpayers billions. While President Trump says that Mexico will pay for the wall, the pronouncements of Mexico’s President show otherwise. How will this be feasible? Also with a provision in the Executive Order barring political asylum seekers, what will America do with those women and children escaping persecution?

More agents

On immigration enforcement, the hiring 10,000 more Immigration and Customs Enforcement (ICE) officers to arrest non-citizens who have violated immigration law, detain and remove undocumented immigrants already ordered removed in the past are also part of the Executive Order.

ICE together with CBP at the border will be turned into a deportation force with the power to remove any non-citizen without due process, who in the “judgment of the immigration officer” (not an immigration judge) is a risk to public safety or national security.

For the Filipino immigrant who has already fallen out of status, there is grave concern about this aggressive immigration enforcement. There is a marked distinction between former President Obama’s Executive Action and that of President Trump.

In former President Obama’s Memorandum on Prosecutorial Discretion, he categorized certain immigrants that should be subjected to removal. There is a list of priorities that were enumerated emphasizing that those with strong family ties in the U.S. are to be accorded deferred action and will be the last on the list of priorities for removal. ICE was instructed to prioritize those with serious criminal offenses, resulting in record high removal of immigrants with criminal offenses at the same time preserving family unity.

Broad range of targets

On the other hand, Trump’s Executive Order lists a broad range of individuals that are subject to enforcement. The list includes those who (1) have been convicted of any criminal offense; (2) have been charged with any criminal offense, where such charge has not been resolved; (3) have committed acts that constitute a chargeable criminal offense; (4) who have engaged in fraud or willful misrepresentation in connection with any official matter or application before a government agency; (5) Have abused any program related to receipt of public benefits; (5) Are subject to a final order of removal, but have not departed. There is no ranking or prioritizing in this list and no reprieve from removal is mentioned to those with strong family ties in the U.S.

The effectivity date of Trump’s Executive Orders is uncertain. It is possible that ICE is already immediately acting on it. A day after President Trump signed the Executive Order, a group of ICE Officers were spotted at a non profit child care center in San Francisco, to apprehend a criminal offender. The children and workers at the center were all taken aback and eventually the ICE officers left without arresting anyone. This is alarming considering that there is an existing 2011 ICE Memorandum instructing ICE officers to stay away from sensitive places like churches and schools.

Whether the presence of ICE officers in our cities will be a common sight in the coming days is horrifying to all of us not only to undocumented immigrants. But this is just the beginning. There are concrete steps we can take. We start by writing our legislators and urge them to oppose Trump’s immigration policies of indiscriminately prosecuting and removing immigrants. Legal challenges in court will be filed to attack the constitutionality of Trump’s Executive Actions. We stand in solidarity with all immigrants and stay firm with our principles and values that made America a strong nation of immigrants.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)

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Updates

Recent changes to the H1B visa program are still favorable

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The U.S. Citizenship and Immigration Services (USCIS) on November 18, 2016 published changes to the H1B program affecting highly skilled workers, and these changes took effect on January 17, 2017. Most of these changes affect those who already have H1B visas and have pending immigrant visa petitions with no available visas.

“Isabela” entered the United States on an H1B visa. She is an engineer who works on different development projects for her U.S. employer. Prior to sixth year H1B expiration, her U.S. employer was able to file a labor certification application and an immigrant visa petition. She has a priority date of 2015 on her immigrant visa petition and a visa is not yet available for Filipino nationals.

The visa bulletin for the month of February 2017 indicates that the visa priority date under the Philippines is 2011 and filing date priority date is 2013. Every year, Isabela’s employer files for a one-year extension of her H1B visa.

She heard about the changes in H1B program that took effect on January 17, 2017. Can she benefit from these changes? If she decides to leave her present employer, will she be able to use the prior approved immigrant visa if this already withdrawn by the employer? What options does she have?

No automatic revocation
In several cases where the employee decides to change employers, the first petitioning employer would take the adverse step of withdrawing the approved petition filed on behalf of an H1B visa holder. And in unfortunate cases, because of the lengthy wait for a priority date to become current, there are times where the petitioner’s business closes for valid reasons resulting in revocation of the immigrant visa petition.

With the recent amendment to the regulations, the USCIS will no longer treat an immigrant visa petition as automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business. This change applies to those whose petitions have been approved for 180 days or more. Hence, for some employers who may have malevolent plans of getting back at their employees for moving to another employer, there will no longer be an automatic revocation.

The USCIS set conditions for the non-automatic revocation to apply. The rule clearly states that as long as the approval has not been revoked for fraud, material misrepresentation, invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including (1) retention of priority dates; (2) job portability under INA §204(j) and (3) extensions of status under AC21 §§ 104(c) and 106(a) and (b).

Three-year extension after sixth year
Considering that immigrant visas are not readily available because of numerical limitations imposed by law, the H1B employee may request for a three-year extension instead of a the one-year increment. The extension request must show proof that the immigrant visa classification is over- subscribed, which is always the case for employment-based petitions (EB3) for nationals of Philippines. However, if the priority date is at least one-year current, the extension will only be for one year.

Besides the above changes in the highly skilled H1B visa program and the employment- based petitions, there are more changes that would benefit H1B visa holders. For Isabela and those similarly situated, the changes above are significantly critical especially to Filipinos who have to bear a lengthy wait before immigrant visas are made available.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)