Author: tancincowp

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Importance of Renewing Your Green Card Before It Expires

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A few weeks ago, there was a settlement by the State of Arizona in the case of Valle del Sol et al. v. Whiting et al , a lawsuit brought against SB1070 by immigrant rights and civil rights organization. The case was filed against SB1070 for its anti immigrant provisions. Through the settlement, the Arizona local enforcers are now prohibited, among others, from stopping or detaining individuals based solely on ethnicity and race and from questioning them about their immigration status. This is a positive development that prohibits racial profiling. However, despite this new development, the USCIS recently emphasized the importance of maintaining a green card that is valid and not expired.

Proof of Residency

Immigrant visa holders may prove resident status through an I-551 or popularly known as the green card. If the green card is not available, a USCIS temporary I-551 or Alien Documentary Identification and Telecommunication (ADIT) stamp on the passport shall be temporarily accepted. The green card is used as proof of legal immigrant visa status and can be used to re-enter if returning to un-relinquished, lawful permanent residence after temporary absence of less than one year. A copy of a green card is also used to show proof of valid immigrant visa status when petitioning family members.

Renewing the I-551

Permanent resident card or I-551 expires but not lawful permanent resident status every 10 years. At least 6 months prior to its expiration, the permanent resident must file for a replacement I-551 by filing a USCIS Form I-90. This may be filed directly to the USCIS or may be done electronically. If the green card holder has an expired I-551 and is outside the United States, he may not file the Form I-90. He must return to the U.S. and file the I-90. Before returning to the United States, the green card holder with the expired green card must obtain a “boarding foil” or a boarding letter from the USCIS at the US Embassy abroad to allow the person to return to the U.S. Upon arrival in the U.S. this individual may then file for the I-90.

While the I-90 is pending, USCIS must provide an adequate temporary substitution in the form of an endorsed I-94 or an ADIT stamp indicating temporary proof of resident status.

Filing for Naturalization

If the immigrant visa holder has a green card which is expired or has a validity period of less than 6 months, the USCIS will require this individual to first file for an I-90 before filing an application for naturalization is accepted. The proof of filing the I-90 will be the receipt notice and this receipt notice may be presented to the USCIS for an ADIT stamp as proof of immigrant status.

On the other hand, if the individual has a validity of more than 6 months on the I-551 or green card, there is no need to file for renewal or I-90 before filing an application for naturalization.

There is particular provision in the current law where an individual is required to maintain a valid green card. It is a misdemeanor under 8 USC § 1304(e) for a lawful permanent resident to fail to keep his green card at all times. This means that the green card must always have a valid date and must not be expired. Despite the settlement of the lawsuit mentioned above, it important to still maintain a valid green card or risk being charged for a misdemeanor.

(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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Updates

USCIS proposes parole status for foreign entrepreneurs

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The U.S. Citizenship and Immigration Services (USCIS) released a proposed rule that will allow the individuals referred to as “international entrepreneurs” to enter the United States temporarily on parole.  The parole status is similar to the status given to children of Filipino war veterans in a recent policy implemented a couple of months ago but in a different context. This recent international entrepreneur rule is considered to be a significant public benefit parole program to promote entrepreneurship and job creation.

There is a gap in the current immigration law  that will permit start up entrepreneurs  who receive significant capital investment from U.S. investors to stay and operate their businesses in the United States. Foreign students who are potential entrepreneurs and founders of start-ups have limited ways  to stay on a temporary visa after they graduate. Young immigrants who are researchers, innovators specifically in new technologies are not afforded sufficient avenues to develop their own start up businesses within the United States. The proposed  policy allows USCIS to use its discretionary parole authority to fill this gap and grant parole to founders of start-up entities whose entry would provide “significant public benefit” and whose start-ups have potential to facilitate research and development , create jobs for U.S. workers or otherwise benefit the U.S. economy through increased business activity, innovation and dynamism.

The proposed rule will grant parole status to an applicant who is an “entrepreneur”  of a start-up who has an active role in the operations and growth of the business. This entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application.

Unlike an investors visa where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.”

There are 3 alternative ways to prove this: first, that the business has significant U.S. capital investment of $345,000 or from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities; second, the business received government funding of grants totaling $100,000 or more; and, third, any reliable and compelling evidence that will prove significant public benefit to the United States.

It is expected that this proposed rule will be implemented before end of this year; and, as soon as the rules are final, the USCIS will start accepting applications on new USCIS Form 941. The filing fee for this application is $1200. Once the application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

Recently it is noticeable that the current administration has been releasing new immigration policies. Even with a few months left before President Obama leaves office, he has somehow made good his promise to use his Executive power to fill in the gaps that have been left open by the failure of a divided Congress to pass any form of immigration legislation that is responsive to the competitive new global economy.

(For inquiries, you may reach Atty. Lourdes Santos Tancinco, Esq., at 1 888 930 0808 or email law@tancinco.com. This article also appears in the Philippine Daily Inquirer.)

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Trump calling PH a ‘terrorist nation’ is absurd

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At a campaign rally in Portland, Maine earlier this month, Presidential candidate Donald Trump discussed his plans to suspend the entry of nationals from terrorist nations into the United States because it’s too difficult to vet terrorists. In his speech, Mr. Trump listed the Philippines as one of the terrorist nations whose immigrants, or in Mr. Trump’s words – “animals”, have been arrested in the United States for terrorism-related offenses. Not only is Mr. Trump’s inclusion of the Philippines offensive considering the historical relationship between the Philippines and the United States, but it sends the wrong message to Filipino immigrants in the US and future immigrants from the Philippines.

The U.S. Department of State designates only three countries as states sponsoring terrorism – Iran, Syria and Sudan – and the Philippines is not one of them.

The United States and the Philippines have strong historical ties as allies. We were allies in the fight against fascism during World War II. During the cold war, the U.S. military bases were present in the Philippines for more than half a century. In the present war on terror, the Philippines entered into an agreement with the U.S. to allow U.S. soldiers to be stationed in some areas in the Philippines to train local forces on counter terror operations. So how can the Philippines be on the list as a terrorist nation? Was Mr. Trump referring to a dangerous terrorist group called Abu Sayyaf in Southern Philippines? This extremist group has been designated as a terrorist group even by the Philippine government together with other nations, like UK, Canada, Australia and the United States, among others. How can a terrorist group not be distinguished from a terrorist nation?

Filipinos have been coming to America for over 100 years. Filipino immigrants are one of the largest foreign-born groups in the United States. Latest census indicates that there are 3.4 million Filipinos (native- and foreign-born) which is the second largest Asian ethnic group in the United States.

Studies show that the median income of Filipino households headed by an immigrant was $82,370 as of 2013, far above the $53,000 of United States-born households.

Filipino Americans (most of whom are voters) have family members who are in the Philippines and a significant number of these Filipinos have pending petitions for their family members. Currently, there is a pending backlog of 400,000 petitions where applicants for visas have been patiently waiting for visa availability. Instead of barring admission based on assumptions, Presidential candidates should consider supporting federal legislative reforms that will eliminate the visa backlogs and create a more efficient immigration system for family members of U.S. citizens and residents. The changes must reflect policies that promote family unification, facilitate immigrant assimilation and boost economic growth.

Lawful Filipino immigrants who have played by the rules and who have contributed to the growth of this nation must be recognized.

In this war on terror, the Philippines and the United States are allies as they have been historically. On the immigration policy of admitting immigrants, both permanent and temporary, the vetting procedures for those who wish to enter the United States is quite extensive. The various levels of security checks that a person undergoes before being issued a temporary and permanent resident visa are comprehensive enough to determine who are threats to national security. If, in fact, the current vetting policy is not enough, the solution is certainly not to bar admission of nationals of a country who have always been an ally of the United States.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)

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Updates

Hardship to a Qualifying Relative in Waiver Application

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When USCIS announced the expanded waiver policy on July 29, 2016, several individuals with approved petitions who are unable to adjust inquired on whether they are eligible to apply for this new waiver. Other than an approved family or employment based petition, the eligibility requirements are the presence of a qualifying relative and proof of extreme hardship that this qualifying relative will suffer if the waiver is not approved.

James entered the United States as crewman in 2013. On his last arrival, James decided not to return to his ship and overstayed his authorized stay. His main reason for staying is that his U.S. citizen father suffered a stroke and he had to stay to take care of him. In 2015, the petition filed on behalf of James became current. Unfortunately, James could not adjust his status because of his unlawful presence and that he has no 245i. At the moment, his father is very ill and might only have a few months to live. He also has a one year old U.S. citizen child born out of wedlock. What are the chances that James is going to qualify for the provisional waiver?

The Waiver Application

An application for waiver is not simply an immigration form that one has to accomplish and submit. It requires more than just answering the questions on the form. The law requires that the applicant show a qualifying relative and that the qualifying relatives will suffer extreme hardship should the applicant be ordered removed.

The qualifying relatives should be either a parent or a spouse or both, who are lawful permanent residents or are U.S. citizens. The children who were born in the United States may not be considered as “qualifying relatives” for purposes of the waiver application. It is not possible to be granted a waiver if the individual in deportation or seeking waiver only has U.S. citizen children. It will also be challenging if there is a qualifying U.S. spouse but he does not present circumstances that will support a finding of “extreme” hardship.

Proving Extreme Hardship

The standards for extreme hardship are very high. The hardship should be more than the difficulties that will be experienced by the qualifying relative as a result of the deportation. Several case law including the case of Matter of Cervantes, 22 I&N Dec. 560 had served as guides in determining what constitutes hardship. The factors that can be considered are (1) presence of green card holder or U.S. citizen family ties of the qualifying relative; (2) country conditions in the country of relocation and qualifying relative ties to that country; (3) financial impact of departure from the United States; (4) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation.

In filing the application for waiver of the fraud, the applicant must include all documents and testimonies from individuals to show the varying factors that may be the basis for showing the hardship. Each individual case is different and so are the circumstances of the case. In the case of James, the qualifying relative is his U.S. citizen father. The minor child is not considered a qualifying relative. But despite the fact that the child is not qualifying relative, he may include the hardship of the child in the waiver application. But if the U.S. citizen father passes away, James will no longer be eligible for waiver because he no longer has a qualifying relative. It is best for James to file the waiver application as soon as possible while his parent is still alive. The extreme hardship to the ailing parent is obviously present for purposes of the waiver.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at 1888 930 0808 or visit her website at tancinco.weareph.com/old or facebook.com/tancincolaw)

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Updates

Revisiting the “Parole in Place” Policy for Children of WWII Veterans

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When U.S. Citizenship and Immigration Services officials visited the Philippine Consulate in San Francisco in July 2015 for a briefing on the Filipino World War II Veteran Policy, the issue that was of serious concern is about the eligibility of those who are in the United States in unlawful status. It was emphasized that the the FWVP parole is only for those outside the United States. Those who are in the United States must leave the country to get the parole but risk being barred for 3-10 years.

Those who are in the United States in unlawful status may still consider applying for a parole in place under the November 15, 2013 USCIS policy memorandum. However, parole in place has limited applicability.

Parole in Place

The U.S. Citizenship and Immigration Services released a Policy Memorandum titled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S.Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act§ 212(a)(6)(A)(i)”. Pursuant to this Memorandum the children, parents and spouses of active duty members of the US Armed Forces as well as the veterans of the US Armed Forces are entitled to a “parole” status.

Parole status means that those eligible will be considered granted temporary relief from removal and that they will be provided with employment authorization document. The new policy also shall allow immediate relative who are eligible for this parole in place status to adjust their status if they have an approved petition visa petition from their US citizen immediate relative. Parole status does not erase any period of prior unlawful presence.

Usually “parole” status is granted to those who are entering the United States but have no valid visas. The U.S. Citizenship and Immigration Services has the authority to grant parole based on humanitarian or emergency circumstances of the applicant for parole. In this new policy memorandum, the grant of parole status is extended to those who are already in the United States in unlawful status but who have entered the United States without inspection or admission. Those who have entered with a valid visa and later on had the visa expired are not eligible for the parole in place.

Considering that the “parole in place” relief has limited applicability to spouses, children and parents of members and veterans of the military service, only children of war veterans who entered without inspection are entitled to parole. Most Filipinos who enter the United States have in their possession valid nonimmigrant visas. At the time of their entry, they are inspected and admitted. Since they were inspected, even if there are those who failed to maintain lawful status, they still will not be eligible for the parole in place.

The case will be different for children of veterans who crossed the Canadian or the Mexican border. When someone crosses the border without the appropriate visa, these are considered to have entered without admission or inspection (known as “EWIs”). If such is the case, then the “parole in place” may be applied with the U.S. Citizenship and Immigration Services.

Yet. those who are not eligible for parole in place may explore the option of adjustment of status under Section 245(i) since most of the veterans petition for their children were filed in before 2001.

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

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Updates

Avoid Payment Scams: USCIS Does Not Accept Fees By Phone or Email

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Immigrants all over the country are being targeted in scams. Don’t be one of the victims! Scammers may call or email you, pretending to be a government official. They will say that there is a problem with an application or additional information is required to continue the immigration process. They will then ask for personal and sensitive details, and demand payment to fix any problems.

Remember, USCIS officials will never ask for payment over the phone or in an email. If we need payment, we will mail a letter on official stationery requesting payment.

If you receive a scam email or phone call, report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you are not sure if it is a scam, forward the suspicious email to the USCIS Webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate.

Visit the Avoid Scams Initiative at www.uscis.gov/avoid-scams for more information on common scams and other important tips. If you have a question about your immigration record, call customer service at 800-375-5283 or make an InfoPass appointment at http://infopass.uscis.gov.

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Updates

Provisional Waiver New Rules to Benefit More Unauthorized Immigrants

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A significant number of unauthorized immigrants who have been petitioned by U.S. citizen or residents’ relatives or employers still find themselves, after many years, still without legal status. Those who are not eligible, among others, include those who entered without inspection, fiancé visa holders with new partners, as well as those who entered with crewman visas. Generally, for those petitioned in family and employment-based preference categories they may adjust status only if they are in lawful status.

In 2013, the provisional waiver rules was released by the U.S. Citizenship and Immigration Services (USCIS) giving immediate relatives of U.S. citizens who are ineligible to adjust an opportunity to obtain a provisional waiver, leave the U.S. and get their immigrant visa at a U.S. Embassy or consulate abroad. Upon their return, they are considered legal residents after having cured their only ground of inadmissibility which is “unlawful presence” through approval of their provisional waiver. Unfortunately, this 2013 provisional waiver is very limited.

On July 29, 2016 USCIS announced that it is expanding the provisional waiver program. There are five changes to the provisional waiver rules.

First, more unauthorized immigrants may now apply for the provisional waiver and will have the opportunity to legalize their stay in the United States. In 2013, only those with immediate relative petitions were eligible for provisional waiver. Now, in 2016, individuals petitioned in any of the family or employment based preference categories may now apply for provisional waiver. The priority dates of these visa petitions must be current which means that there is an available visa and that the beneficiary does not have any other ground of inadmissibility other than being “out of status”. The Second change in the rule is consideration of additional relatives who may be qualifying relatives. For purposes of the extreme hardship requirement to qualifying relatives, the new rule now permits LPRs or green card holder parents and spouses to be considered for purposes of showing extreme hardship.

Thirdly, besides expanding the scope of petitions covered by the provisional waiver, the new rules also allow those in removal proceedings or those with removal orders to apply for provisional waiver.

Fourth, the new rules now clearly states that USCIS may no longer use the “reason to believe” that there are other grounds of inadmissibility to deny the provisional waiver. In the 2013 rules, despite an apparent eligibility for provisional waiver USCIS nevertheless denied waiver applications based on “reason to believe”. This is now eliminated in the 2016 rules.

Lastly, the Department of State “interview schedule” bar has been eliminated. USCIS may now allow applicants to apply for provisional waiver despite having been scheduled for a visa interview prior to 2013. In eliminating this bar, there will be more applicants who may qualify for the provisional waiver.

Those who may eligible may now prepare to file their applications for provisional waivers in time for the effectivity date of the new rule which is August 29, 2016.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Global Pinoy

Prosecutorial discretion as an option for the undocumented

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Ten years after arriving in the United States, Eva seems to have lost her hope of legalizing her stay. She was petitioned by her U.S. citizen fiancé, but after a few weeks of living together as a couple, her petitioner abandoned her. Her U.S. citizen fiancé never married her. She now has a child who was born in the United States from a subsequent relationship, but the father also refuses to acknowledge the child; and, neither is he marrying Eva.

In 2014 when President Obama announced the Executive Actions for parents of U.S. citizens (DAPA), Eva became hopeful that she would have an opportunity to stay and work legally. After an adverse ruling was rendered on June 23, 2016 by the U.S. Supreme Court upholding the injunction on the DACA+ and DAPA, Eva became fearful that this setback would have the effect of immediate removal/deportation from the United States for the millions of immigrants who were prospective beneficiaries of the DAPA and DACA+.

Secretary of the U.S. Department of Homeland Security Jeh Johnson, made a public statement that the enforcement priorities will be focused on those who have criminal convictions, threats to public safety and national security and border security. New immigration violators or those who just arrived and are now in unlawful status are second in priority for enforcement. Last in priority of enforcement are those with other immigration violations or those who are in the country in unauthorized status. This last category of immigrants is considered non-priority.

Despite these categories of enforcement priorities, there are recent cases where the DHS still placed in removal proceedings individuals who are in a non-priority category. This is quite troubling for those who are already in authorized stay. While there is no increase in the apprehension of undocumented immigrants, it is important to understand that if there is no immediate relief available, prosecutorial discretion may still be requested.

This prosecutorial discretion refers to different actions by the DHS to avoid removal, placing an individual in removal proceedings, dismissing an action, deciding to release a detained individual or whether to grant deferred action or parole. There is a broader deferred action policy that may be asserted in requesting for prosecutorial discretion.

There are different factors taken into account in order to warrant a favorable exercise of discretion from DHS. It may include, among others, the following: length of time in the United States; military service; family or community ties in the United States; status as a victim, witness or plaintiff in civil or criminal proceedings; or compelling humanitarian factors such as poor health, age, pregnancy, a young child, or a seriously ill relative.

Eva may take still have the option of requesting for prosecutorial discretion if she ever finds herself in immigration court for removal proceedings. Whether or not she will be granted favorable exercise of discretion will depend on the circumstances of her case.

Absent comprehensive immigration reform as well as the DACA and DAPA programs, prosecutorial discretion remains good policy and may always be requested especially in humanitarian cases where removal will affect families with U.S. citizens or lawful permanent residents.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, facebook.com/tancincolaw, or through tancinco.weareph.com/old)

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Updates

Immigration reformers eye Gang of 8 revival

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Politico reports that several members of the Gang of Eight, the bipartisan group of senators that shepherded a comprehensive immigration reform bill through the Senate in 2013 only to watch it stall in the House a year later, are ready to try again. Several influential lawmakers, including Gang of Eight leader Senator Chuck Schumer (D-NY), see another opening for immigration reform in 2017, especially in light of the upcoming presidential and congressional elections and the U.S. Supreme Court’s deadlock in United States v. Texas. (source)