Author: tancincowp

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Global Pinoy

Challenges in applying for Filvets US parole visa

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Henry was petitioned by his father who was a Filipino World War II veteran. Sometime in 2000, his father suffered a heart attack in the U.S., and Henry traveled on a visitor visa to take care of him. He extended his stay as a visitor for another six months until his father passed away.

Henry stayed beyond his authorized stay in the U.S. and incurred unlawful presence. He heard about the parole program for children of Filipino World War II veterans and is excited to apply for parole. Will Henry be eligible to apply for parole?

Henry meets most of the requirements of the Filipino World War II Veterans Parole Policy or FWVP as released by the U.S. Citizenship and Immigration Services on May 9, 2016. Henry is already in the United States; will he still be allowed to apply for the parole and eventually be eligible for employment authorization?

Those presently in the U.S. must depart and process for the parole abroad (U.S. Embassy in Manila). But if Henry departs from the United States, he will face the 3 to 10-year bar to inadmissibility.

This means that since he has been out of status for more than one year, he will not be able to return to the U.S. for 10 years, defeating the purpose of the parole. Henry may just want to take at the legal option of a humanitarian reinstatement of the revoked petition and subsequently apply for adjustment of status.

There are several benefits of FWVP as thousands of family members may take advantage of this program in the next five years. But there are also anticipated challenges. One is the requirement that veterans or their surviving spouse must be the petitioners for parole if they are still alive. With their advanced age and declining health, they will need assistance to locating and putting together the supporting documents needed to file parole for their children.

Another major challenge is a situation where both parents are deceased and the children are allowed to self-petition for parole. In this case, they have to request for the humanitarian reinstatement of the petition before they may be granted the parole. This request for humanitarian reinstatement is very discretionary and usually the standards are very high unless special consideration are given to children of Filipino veterans.

As mentioned by the USCIS in its May 9, 2016 announcement of this parole program, the FWVP is a discretionary determination that will be made on a case by case basis. While it is understandably a discretionary matter, in delineating the parameters and in the implementation of this parole program USCIS should be liberal in the exercise of their discretion. They should take into account not just the policy behind the parole program, but also its humanitarian nature, recognizing the extraordinary contributions and sacrifices of these Filipino veterans during World War II.

(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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Global Pinoy

When petitioner’s relatives won’t support the US visa applicant

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Most petitioners for immigrant visas are familiar with Affidavits of Support that are required to be submitted before the future immigrant is issued a visa. What are the responsibilities of a person who signs an affidavit of support for an intending immigrant? What will happen if the petitioner does not have enough income to support another person?

Pablo petitioned for Nathan, his single adult child, more than 10 years ago. The National Visa Center initiated the visa processing recently and an affidavit of support is required to be submitted. Pablo is reliant only on his monthly welfare check or Supplemental Security Income (SSI). He lives in a rented room owned by his brother. He wants Nathan to immigrate to the United States so that Pablo will have his son to hopefully support him during his remaining years.

Pablo’s brother who lives with him refuses to sign an Affidavit of Support because he claims that he has his own financial issues. What can Pablo do to enable his son to complete his visa processing and travel to the United States?

In order that future immigrants do not become a public charge, US immigration law requires the applicant for visa to submit an affidavit of support from the petitioner on Form I-864. The petitioner or sponsor must show evidence of “the means to maintain an annual income equal to at least 125 percent of the Federal poverty line”.

Clearly, the U.S. government expects the sponsor to provide support to the intending immigrant and to make sure that s/he does not rely on any federal or state agency for means tested benefits. Finding a co-sponsor may be a challenge for some petitioners, and sometimes there is malicious refusal to sign affidavits of support by relatives in a few dysfunctional families. Whatever it is, there are alternate ways to meet the Affidavit of Support requirement.

In case the petitioner does not meet the income level as set by the federal poverty guidelines, the law permits him to consider the income or assets belonging to other household members. The latter may be the spouse, children, parent, sibling or another relative who lives in the same principal residence as the petitioner. If there is no sufficient income or asset of the petitioner or household member, the next step is to secure a co-sponsor who can satisfy the financial requirements of the affidavit of support.

In the case of Pablo, while he has a household member who is a relative, the latter is unwilling to sign the affidavit. Pablo’s option is to seek an Affidavit of Support from his non-household relatives or friends who will be willing to be co-sponsors and who have sufficient income to meet the federal poverty guideline. Absent a co-sponsor’s affidavit of support and given the inability of Pablo to meet the income requirement, Nathan will not be able to get a U.S. immigrant visa. The law provides very few exceptions law on certain classes of immigrant visa petitions. The case of a Filipino seeking an immigrant visa based on a family petition is not one of the exceptions.

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

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Global Pinoy

US parole for WWII Filvet families: Good news, bad news

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Beginning June 8, 2016, the US Citizenship and Immigration Services will accept applications for parole from eligible children of Filipino WWII veterans. This is a positive development for veterans who have been waiting for many years to be reunited with their children. However, this policy is being implemented at a time when many of our veterans, or their widows, have passed on or are elderly. Will they be able to reap any benefit from this program?

Family-based preference visas are numerically limited per year, resulting in significant waiting periods for immigrant visa issuance. For the Philippines, the waiting period for first preference immigrant category covering adult, single children of US citizens is almost 10 years.

Worse yet, it is taking more than 20 years for married children of US citizens. Many elderly veterans with petitions have gone on from this world unable to wait for their children to immigrate. Of those still alive, many are now sickly and living alone.

Due to the dysfunction of the US immigration system, President Obama released a 2015 report called the “Modernizing and Streamlining of the Immigration System,” which included a mandate to allow the families of Filipino veterans to enter the United States. Hence, the parole program was conceived.

Unlike a US visa, a discretionary grant of parole allows a person to temporarily enter the US for urgent humanitarian reasons or significant public benefit. The new parole program will allow the children of Filipino WWII veterans who have approved petitions to come to the US while waiting for their immigrant visas.

Recently, I gathered a group of veterans and widows in San Francisco to make a presentation on the parole program. I explained clearly to them that with this parole program, they will soon be reunited with their children in the coming months. As I was speaking with excitement, the veterans seemed quiet instead of their usual smiles and celebratory noise. Were they in shock that their children would soon be coming to the US? Why didn’t they seem happy? Don’t they understand the impact of this parole program?

It was disheartening to see their joyless reactions. After I spoke, I approached Nana Auring, a widow of a veteran, who appeared downcast during my presentation. She whispered to me, “I was told to wait. That’s what I have been doing.”

I told Nana she didn’t have to wait long anymore because of the parole program. She just sadly nodded. Her husband died waiting to be reunited with their children. She’s been living alone in her room for many years just waiting. At that point, I realized I was addressing elderly and ailing seniors in their late 80s and early 90s who had already given up hope.

The few veterans and widows who attended my presentation may not be representative of all the beneficiaries of the program. To many, I believe, this opportunity of coming to the US through parole, will help realize the lifetime dream of many Filipino veterans (or their widows) wishing for family reunification. To some, this will be too little too late.

(Atty. Lourdes S. Tancinco is an immigration attorney based in San Francisco CA. She may be reached at law@tancinco.com, tancinco.weareph.com/old, www.facebook/tancincolaw, or at 1-888-930-0808)

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Updates

Firms May Submit Investigations If Extension of Status/Change of Employer Petition Has Been waiting for 210 Days or More

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On April 21, 2016, USCIS initiated letting requesters who filed Form I-129, Petition for a Non-immigrant Worker, requesting a status extension or change of employer to submit an inquiry after their petition has been waiting for 210 days or more.
To submit an inquiry, petitioners may call the National Customer Service Center at 1-800-375-5283, (TTD for deaf and hard of hearing: 1-800-767-1833) provide the receipt number of the case, and specify that the case has been pending for 210 days or more.

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Global Pinoy

The tolerated U.S. presence of dedicated Filipino caregivers

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Joe, a Filipino national was the caregiver for “Mr. Smith.” He cared for Mr. Smith like his own father. One day, he noticed that Mr. Smith was having difficulty breathing. Joe immediately called 911. The paramedics arrived and tried to revive the patient until one of the paramedics discovered that there was a living will with a “Do not resuscitate” clause. All further effort to revive the patient was aborted.

Witnessing how Mr. Smith was let go by the paramedics was a painful experience for Joe. He knows that if Mr. Smith were his father, all efforts would have been taken to revive him; unfortunately, this is the reality of his job. Mr. Smith passed away at the age of 93. Joe continues to work as a caregiver for another senior citizen. Joe is an undocumented.

Joe represents thousands of dedicated Filipino caregivers working in private homes, board and care homes and in health care facilities. These workers care for their wards with dedication and treat them like their own family members. While many caregivers are documented immigrants, a significant number are not.

The U.S. Department of Labor sets minimum standards to protect the rights of the workers. However, the lack of immigration status provides an avenue for employer abuses regarding the wages and working conditions of the caregivers.

There are U.S. employers who hire caregivers without legal status due to the shortage of available U.S. workers. Aida, an owner of two health care facilities in Arizona, has been advertising caregiver job positions for many years, but she has not been successful. She now wishes to petition her nieces to work for her as caregivers. When Aida inquired about petitioning the nieces, she was told that the process takes many years before caregivers are able to get their immigrant visas. It is the reality of the current U.S. immigration system that even jobs in demand require years of wait.

Caregivers are classified as “other” workers and they fall under the third preference employment-based category. This means that to work as a caregiver one does not have to possess a bachelor’s degree but needs only at least a high school diploma and a few months of working experience. At the moment, Filipino nationals who are being petitioned under this category wait approximately 6-7 years before their visas are available. For the month of May 2016, only petitions filed on or before August 1, 2008 are being accepted for visa issuance.

The petition delays for the caregivers result in varying scenarios for those who are already in the United States. Will they accept a job offer from a U.S. employer even if they have no lawful status? Or should they just return to the Philippines and wait years before their visas are issued? The legality is that the latter is the only option. The reality, however, is that the former is the more convenient choice not only for the caregivers, but also for many U.S. employers desperate to fill a need.

Until a new policy is adopted to change how caregivers are classified and unless they are given a special category, the convenient route for U.S. employers experiencing the shortage will only lead to the tolerated presence of many more undocumented workers.

(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

USCIS Concludes the Data Entry of Financial Year 2017 H-1B Cap-Subject Petitions

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USCIS give out a news today specifying that they have completed data entry of the all the H1B Fiscal Year 2017 cap subject petitions. USCIS will start to return all the petitions that were not selected. The petitioners should not interact with USCIS regarding their H1B petition until they receive some sort of communication about their petition either a reject notice or case receipt. An announcement will be issued by USCIS once all the unselected petitions have been returned.In addition, USCIS is moving some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. You will receive notification in the mail, if your case is transferred. After receiving the notification, please send all future correspondence to the center processing your petition. If you are filing a Form I-907, Request for Premium Processing, to upgrade your Form I-129 H-1B petition to premium processing, send the completed Form I-907 with the appropriate fee to the center processing your petition.

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Global Pinoy

Will Obama’s immigration executive actions prevail?

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More than 4,000 immigrants and advocates gathered outside the highest court of the United States while the justices heard the case of United.States. v. Texas. Among those who were present were immigrant families who are undocumented and who have a stake in the result of the litigation.

Certainly, there were Filipino Americans advocates and families who also joined the rally and were very vocal about their support for the programs. The 4 million individuals who have a stake in this litigation include numerous Filipino families who will benefit from the Obama’s executive actions. The most pressing question after the hearing is, What is the likelihood of a decision in favor of the Obama’s DACA/DAPA executive actions?

United States v. Texas is a lawsuit initiated by 26 States questioning the legality of Obama’s Executive Actions on DAPA and the DACA extension. DAPA refers to Deferred Action for Parental Accountability where deferred action will be granted to undocumented parents of U.S citizens.

The DACA expanded program will allow more undocumented children to apply for deferred action. If deferred action is granted, employment authorizations will be issued to qualified applicants while it does not confer any other immigration benefit such as a pathway to legal resident status.

An estimated 4 million individuals who are currently undocumented are expected to benefit from these DACA and DAPA programs. Implementation of these programs were stalled by court injunction. The case ultimately reached the U.S. Supreme Court and legal arguments were heard by the justices on April 18, 2016.

The issues on standing and the merits of the executive actions were argued well by the U.S. Solicitor General Donald B. Verrilli, Jr. in favor of the DACA/DAPA programs. Verrilli emphasized that the States do not have the standing or legal capacity to bring the lawsuit.

The nature of the controversy was more of a political disagreement with the Federal government rather than a legal dispute. Considering that it is it a political disagreement on federal enforcement, to render a decision in favor of standing will open a floodgate of cases where states may, at anytime, sue the federal government for any political disagreement.

Most of the legal arguments centered on the issue of standing. As to the merits of the DACA/DAPA, the lawyer for the Respondent States, Texas Solicitor General Scott A. Keller wrongly argued that these executive actions confer legal status. This argument was met by the Verrilli’s rebuttal that deferred action does not confer legal status but rather a tolerated presence by the U.S. Department of Homeland Security.

The decision will be rendered sometime in June 2016. With very compelling and convincing arguments raised during the hearing by Verrilli, a favorable outcome in favor the DAPA/DACA Executive Actions, with at least a 5-3 vote, is hoped for by thousands of families who will be affected by the Supreme Court decision. Unfortunately, with one vacancy in the U.S. Supreme Court, there are only 8 justices. If the justices are divided 4-4, then the injunctions on the executive actions will remain.

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Updates

H-1B Cap Premium Processing to Begin May 12 for the Financial Year 2017

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U.S. Citizenship and Immigration Services (USCIS) will be initiating the premium processing for cap-subject H-1B petitions requesting premium processing, comprising petitions pursuing an exemption for individuals with a U.S. master’s degree or higher on May 12, 2016.

USCIS first broadcasted in a news announcement that it would temporarily adjust its premium processing practice due to the historic premium processing receipt levels, combined with the possibility that the H-1B cap will be met in the first 5 business days of the filing season. USCIS provides premium processing service for certain employment-based petitions and assurances a 15-calendar-day processing time.

For H-1B petitions that are not matter to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

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Updates

New Version of Form N-400, Application for Naturalization is announced by USCIS.

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USCIS revised Form N-400, Application for Naturalization on April 13, 2016. The revised version is accessible at uscis.gov/n-400. August 9, 2016 is the last date to use the 9/13/13 form edition, if any forms submitted after August 10, 2016, it will be discarded and previous versions of Form N-400 submitted will be returned.

Eligibility Requirements

The eligibility requirement for naturalization remains the same. Visit uscis.gov/n-400 to get the information on how to complete the form, and where eligibility requirements can be found.

Revised Form Changes:

  • Removed the bar code
  • Streamlined the application process for the customer
  • Identified evidence

 

Instructions to complete the Revised Form N-400:

  • Access the revised form uscis.gov/n-400.
  • Complete it electronically, then print, sign and mail it to the USCIS Lockbox listed in the instructions. Please comprise supporting papers and the correct fee.
  • If you are unable to fill out Form N-400 electronically, you may print it, or request a paper form by calling the Forms Request Line at 800-870-3676.
  • You must complete the paper form in black ink. You may also get forms and information by calling the USCIS National Customer Service Centre at 800-375-5283