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Updates

DHS Withdraws October 2020 Affidavit of Support Rule

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The U.S. Citizenship and Immigration Services (USCIS) announced on March 19, 2021 that proposed rule on affidavit of support dated October 2, 2020 will be withdrawn. This policy change is consistent with the Department of Homeland Security’s (DHS) commitment to reduce barriers within the legal immigration system. DHS and USCIS are committed to eliminating barriers that prevent legal immigrants from accessing government services available to them.

The 189-page October 2020 rule would have imposed higher qualifying and evidentiary requirements including production of bank information and credit reports. These requirements would have placed undue burden on the U.S. citizens petitioning their relatives who are signing affidavits of support. According to the USCIS, it is estimated that the cost of implementing these requirements on U.S. citizen petitioners is $2.4 billion over the next decade.

The withdrawal of this rule is just one of many policies that reverses the prior administration’s restrictive immigration rules. These changes are all consistent with President Biden’s Executive Order (EO) 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.

Both the Department of Homeland Security and the Department of State are reverting to the public charge standard that had been in effect prior to the proposed changes.

Meantime, the DHS has reinstated the Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, which allows certain applicants to seek exemption from the affidavit of support requirements. These applicants include: (1) individuals who have earned or can receive credit for 40 quarters of coverage under the Social Security Act (SSA); (2) children who will become U.S. citizens upon entry to the United States; (3) self petitioning widow/ers and (4) self-petitioning battered spouses and children. These applicants will be required to submit Form I-864W if seeking an exemption from the affidavit of support requirement.

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Updates

No More Trump Era Citizenship Test: Back to the 2008 Civic Test

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The U.S. Citizenship and Immigration Services (USCIS) announced on February 22, 2021 that it will revert to the 2008 version of the naturalization civic test. 

The Trump-era citizenship test is lengthy and doubled the number of questions immigrants must answer correctly to pass. In keeping with President Biden’s executive order directing federal agencies to “restore faith” in the immigration system and make naturalization more accessible, the USCIS will administer the 2008 civic test instead. 

The civics test is administered to applicants who apply for U.S. citizenship through naturalization and is one of the statutory requirements for naturalizing. Applicants must demonstrate a knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. The decision to naturalize demonstrates an investment in and commitment to this country. USCIS is committed to administering a test that is an instrument of civic learning and fosters civic integration as part of the test preparation process.

According to the USCIS, applicants who filed their application for naturalization on or after December 1, 2020, and before March 1, 2021, likely have been studying for the 2020 test; therefore, USCIS will give these applicants the option to take either the 2020 civics test or the 2008 civics test. There will be a transition period where both tests are being offered. The 2020 test will be phased out on April 19, 2021, for initial test takers. Applicants filing on or after March 1, 2021, will take the 2008 civics test.

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Featured

Updates on Biden’s U.S. Citizenship Act of 2021

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The U.S. Citizenship Act of 2021 (H.R. 1177 and S.348) introduced in Congress by the Democrats on February 18 and 22, 2021 is currently referred to the Judiciary Committee for hearing and consideration. No significant action has been taken on this Biden bill since its introduction.

There are two stand-alone bills that were approved by the U.S. House of Representatives in the month of March 2021. These are the American Dream and Promise Act and the Farm Workforce Modernization Act. Both of the provisions of these bills are also included in the broader U.S. Citizenship Act of 2021.

The American Dream and Promise Act

On March 18, 2021, the U.S. House of Representatives passed the American Dream and Promise (H.R.6) by a bipartisan vote of 228 to 197. Nine Republicans voted yes with the Democrats. 

The Dream and Promise Act would grant Dreamers conditional permanent resident status for 10 years, and cancel removal proceedings if they:

  1. Have been continuously physically present in the U.S. on or before January 1, 2021;
  2. Were 18 years old or younger on the initial date of entry into the U.S.;
  3. Are not otherwise inadmissible.

The Farm Workforce Modernization Act

On March 18, 2021, the U.S. House of Representatives passed the Farm Workforce Modernization Act by a 247 to 174 vote. The passage was bipartisan with 30 Republicans voting yes with the Democrats; one Democrat voted against the bill.

This bill establishes a program for agricultural workers in the United States (and their spouses and minor children) to earn legal status through continued agricultural employment. The bill provides a process for farm workers to seek Certified Agricultural Worker (CAW) status—a temporary status for those who have worked at least 180 days in agriculture over the last 2 years. CAW status can be renewed indefinitely with continued farm work (at least 100 days per year). 

Both the American Dream and Promise Act and the Farm Workforce Modernization Act must be passed before the Senate before it becomes effective as legislation. The Senate must pass these bills with bi-partisan support. Given the support of the Republicans (9 Republicans on the Dream Act and 30 Republicans on the Farmworker bill), we are optimistic that these bills will also pass in the Senate. 

We are monitoring progress of the U.S. Citizenship Act of 2021 where various committees including the Judiciary Committee must recommend approval of the bill after examining all the provisions. If approved it will provide, among others, pathways to citizenship for millions of unauthorized immigrants once passed into law. This is a 353-page bill that would revamp the outdated immigration law which has not been updated in 30 years. The bill states as its purpose “to provide an earned path to citizenship, to address the root causes of migration and responsibly manage the southern border, and to reform the immigrant visa system, and for other purposes.”

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Updates

The “Johnson Memo”: ICE to Prioritize Enforcement

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The U.S. Immigration and Customs Enforcement (ICE) Acting Director Tae Johnson released its ICE memorandum known as the “Johnson Memo” and laid out three priorities for enforcement:

  • national security,
  • border security and
  • public safety.

The new memo applies to every stage of enforcement, from deciding whether to arrest someone to deciding whether to deport them.

Presumed priorities are defined in the memo under these 3 categories.

For the third presumed priority under public safety, the individual must have been convicted of an aggravated felony or trigger the gang participation prong and must pose a threat to public safety. ICE officers are instructed to consider various factors before deciding to arrest or deport. These factors include: first, the extensiveness, seriousness, and recency of the criminal activity; and second, presence of mitigating factors, including, but not limited to:

  1. Personal and family circumstances;
  2. Health and medical factors;
  3. Ties to the Community;
  4. Evidence of rehabilitation; and
  5. Whether the individual has potential immigration relief available.

Prioritizing enforcement is a dramatic departure from the prior administration policy of deporting families who have lived for years in the United States, terrorizing immigrant communities and a reported increase in “collateral” arrests of individuals who were separated from their families.

The Johnson Memo is only an interim memo, and the Department of Homeland Security (DHS) Secretary will publish new rules for ICE officers, likely within 90 days. If you or any family member is at risk of removal or arrest, or has a final order of removal, it will be best to contact our office to determine if you fit the criteria for a presumed priority or not. Since this Memo does not completely take out ICE’s authority to apprehend, detain and remove individuals, one may want to have his or her case analyzed to determine whether it falls outside the presumed priority and if available reliefs are available.

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Updates

2 Immigration Bills Benefitting Dreamers and Farm Workers Passed in the House

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The American Dream and Promise Act and the Farm Workforce Modernization Act were passed in House on March 19, 2021. These two measures need to pass the Senate before becoming law.

The American Dream and Promise Act would allow young undocumented immigrants to seek lawful permanent residency if they pass background checks and meet requirements related to education, employment or military service. Along with Dreamers, certain people with Temporary Protected Status or Deferred Enforced Departure would also be eligible. The bill passed on a 228-197 vote, with nine Republicans joining all Democrats in support. Over 2.1 million DREAMERS will benefit from this bill if passed into law.

The Farm Workforce Modernization Act was the other bill that was passed by the House. This measure would allow undocumented agricultural workers who pass background checks get temporary legal status that can be renewed indefinitely with continued farm employment. Veteran farm workers would have a path to seek lawful permanent residency. It won approval on a 247-174 vote, with 30 Republicans joining all Democrats in support.

The fact that two immigration bills passed in the House indicates that legislators are more likely to support a piecemeal approach towards immigration reform. Immigration advocates need to work together and urge their representatives in Congress to support the Citizenship Act of 2021, the bill that will, among other provisions, provide a pathway to U.S. citizenship to millions of undocumented immigrants who pass background checks and have been long time productive citizens.

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Updates

Unauthorized Use of Social Security May Result in Removal

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Fernando entered the United States in 2010 without a valid visa. To be able to work in the United States, he used a social security number of another individual illegally. In 2015, he was convicted of the “use of an unauthorized social security number” in violation of federal law (42 USC 408(a)(7)(B). Later the Department of Homeland Security charged Fernando as being removable because his criminal conviction was considered as conviction of a crime against moral turpitude (CIMT). He was ordered removed by the Immigration Court as his cancellation of removal was denied. Fernando’s appeal to BIA was denied and on petition for review the 5th Circuit Court of Appeals affirmed the BIA decision.

In a similar case pending with the Supreme Court, the Pereida, a long time resident of the United States with U.S. citizen children was put in removal proceedings. He has an underlying case of unauthorized use of social security number but his criminal conviction was a misdemeanor state offense of criminal impersonation under the Nebraska criminal statute. The immigration court ordered him removed considering the conviction as a crime against moral turpitude. BIA affirmed the immigration judge’s decision.  The case is still pending with the Supreme Court. Oral arguments were heard in October 2020 and no decision has yet been rendered.

Case to Case basis

While the two cases are similar in facts, the second case of Pereida was a state conviction while that of Fernando was clearly a federal crime. Legal arguments will be centered on whether the elements of the state crime corresponds to the federal offense listed on the Immigration and Nationality Act. 

Conviction for unauthorized use of social security number is a crime against moral turpitude and is a deportable offense. But each case is different. The underlying offenses must be analyzed on whether they clearly fall under the federal offense grounds for removal. Also, legal counsels should be able to look into any post-convictions relief if they are available to lessen or erase the immigration consequences of the crime.

On President Biden’s first day of office, he issued an Executive Order revoking Trump’s 2017 Executive Order on Enhancing Public Safety in the Interior. Thus, ICE, USCIS and CBP released a Memorandum focusing only on removing individuals who are threats to national security, border security and public safety. Conviction of a crime against moral turpitude for unauthorized use of social security is a fraud offense and does not fall under these priorities. However, without clear directives from ICE, favorable discretion may or may not be exercised to not enforce removal of those with misdemeanor offenses and with strong family ties.

Pathway to Citizenship 

In the meantime, it would be best for those still waiting to avail of the “pathway to citizenship” to be good citizens and to stay away from engaging in unlawful activities to avoid complicating future immigration applications. Or better yet, to have your case assessed if you have criminal case history to determine possible legal options of obtaining permanent resident status or availing of future options to “pathway to citizenship.”

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Featured

Foreign Nurses Can Help Solve US Hospital Staff Shortages During COVID And Beyond

Foreign Nurses Can Help Solve US Hospital Staff Shortages During COVID And Beyond
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Since last September, the number of hospitalized patients across the US has increased nearly every day. Since November 1, 2020, the number of people hospitalized with COVID-19 has doubled and since October 1, it has tripled. More than 1,000 hospitals in the US are “critically” short on staff. 

Nurses and other medical staff are the driving force behind the American healthcare system. To focus on nurses, America’s 3 million nurses are the largest category of workers in our healthcare workforce. And while nursing is one of our country’s fastest-growing professions, the nursing profession is not growing fast enough – according to the Bureau of Labor Statistics, in the next two years, the US will see 1.2 million vacancies for registered nurses. By 2025, the nursing shortage will be twice as bad.

So, let’s look a bit more at the shortage, how it’s affecting our fight against the Covid-19 pandemic and how immigration can help.

The US healthcare worker shortage isn’t a new problem

Even before the Covid-19 pandemic slammed global healthcare systems, the US has been desperate for more nurses. 

There is a shortage of nurses across the US and according to the American Association of Colleges of Nursing, the shortage is expected to intensify. The American workforce is rapidly aging and more and more baby boomers are retiring. One million of the 3.8 million registered nurses in the United States will leave the workforce between now and 2030. 

But why is a profession that is well-respected and pays decently struggling to keep up with demand?

Blame it on the Baby Boomers! Today, there are more Americans over the age of 65 than at any other time in US history. In the next 20 years, one in five Americans will be a senior citizen, and by 2050, there will be 88.5 million Americans over the age of 65-years-old. Among these aging Americans are nurses! Right now, approximately one million registered nurses are older than 50, meaning that we can say goodbye to these healthcare workers as they enter retirement in the next 10 to 15 years. 

The nursing education system has been struggling to keep up with the demand for new nurses. According to an American Association of Colleges of Nursing report, American nursing schools turned away 79,659 qualified applicants in 2012 simply due to lack of resources and instructors. So, as you can see, the American healthcare system was already under strain from a lack of qualified nurses.

Then the coronavirus pandemic reached our shores.

The healthcare worker shortage is impacting the COVID-19 vaccine roll-out

About a year ago, Covid-19 seemed like an issue far from America’s borders. Today, the virus has spread across the globe and more than 100 million infections have now been reported worldwide. The US has more Covid-19 cases than any other country, and our infections make up more than 25% of the total worldwide.

Since this time last year, doctors have gotten better at saving the lives of critically ill Covid-19 patients, but healthcare workers are overwhelmed and hospitals are crowded. Simply put, more than 40% of Americans live in areas where intensive care units are running out of space. These overburdened hospitals are dealing with exhausted nurses and doctors, and a shortage of experienced healthcare workers.

Right now, healthcare workers are not only responsible for sick Covid-19 patients, but also distributing vaccinations. The US vaccination campaign has gotten off to a slow start, with less than 20 million people getting their first dose by mid-January 2021. President Biden recently announced that the US will deliver enough doses to vaccinate 300 million Americans by the end of the summer or early fall, but we need trained personnel to drive what will be the largest vaccination effort in US history.

In places like Arizona — where the coronavirus is spreading faster than in almost any other state — 4 out of 5 doses haven’t been used because finding someone qualified to give the shots is difficult. Can you believe that?

As hospitals strain under the stress of the pandemic, many are wondering: how did we get here? How is it possible that US hospitals don’t have enough experienced nurses and doctors to treat Covid-19 patients and vaccinate the American public?

The good news is that the solution is simple: hire more foreign-trained nurses and other healthcare staff.

Foreign nurses are the solution to America’s healthcare woes

In the past, hospitals might have closed beds to address a shortage of nurses. During a pandemic, that option is not possible. But there’s a win-win solution – to hire nurses and other healthcare professionals from abroad.

Immigrants make up 18% of total US healthcare workers, but more specifically they are 22% of nursing assistants and 29% of physicians. Current US immigration policies have left hospitals across the country understaffed and ill-prepared to face the coronavirus pandemic. Even before Covid-19 hit our shores, we had a projected shortage of roughly 15,000 to 22,500 primary care doctors and over one million nurses.

Foreign-born doctors and nurses arrive in the US on H-1B, J-1, and EB-3 visas, but right now, denial rates for H-1B petitions have increased significantly, from 6% of applicants denied in 2015 to nearly 25% in 2020. EB-3 visas have also been down as much as 33% since 2015. These numbers are staggering when you consider that one-in-four direct-care workers are foreign-born.

These highly skilled healthcare workers are often able to immigrate to the US easily and hit the ground running at their new jobs. Legislation like the Healthcare Workforce Resilience Act (HWRA) — a bill aimed at increasing the number of available immigration spots for nurses and doctors that was introduced in May 2020 — would make it even easier for foreign nurses to immigrate to the US.

This bill was inspired by and created to face the COVID-19 pandemic, and if passed, would allow up to 25,000 immigrant visas to qualifying nurses and 15,000 immigrant visas to physicians, as well as their spouses and kids. This would be a game-changer for the current US healthcare system. For now, though, it’s been stalled.

Plus, many foreign health workers have invaluable experience dealing with infectious disease epidemics such as SARS, Ebola, or HIV in other countries and are ready and able to take jobs at American hospitals. Recently, the State Department issued guidance calling for foreign medical professionals with approved visas or certificates of eligibility for exchange visitor programs to get expedited processing to come to the US. They are especially prioritizing health care pros who have experience “working to treat or mitigate the effects of Covid-19.”

While a new regulatory landscape around immigration law might change forms, processes, and applications, one thing stays the same: the demand for skilled, experienced international nurses and others as well as an easy and streamlined way of getting them into the US.

Foreign nurses will help to alleviate our strained healthcare system, but they might need a little help getting here.

Tancinco Law helps hospitals, healthcare facilities and healthcare staffing companies bring skilled nurses and healthcare professionals into the US

As hospitals struggle to handle the most recent COVID-19 surge, hospital and other healthcare facility administrators are not only worrying about beds or ventilators in short supply but also finding enough healthcare workers to care for the sick. Fortunately, there is a highly-skilled workforce of foreign-educated doctors, nurses, and other health practitioners ready to step in and help.

It’s vital that we welcome more internationally-trained nurses to the US. In the midst of the continuing COVID-19 global pandemic, our country needs more experienced nurses than ever, and we’re working day in and day out to help build a stronger, healthier community, one nurse at a time.

Tancinco Law helps hospitals, healthcare facilities, and healthcare staffing companies manage every step of the immigration process when hiring foreign-trained nurses and other healthcare professionals. Tancinco Law was founded by Filipino immigrants, and we’ve been helping Filipinos nurses and many others immigrate to the US for decades. We are closely connected to the immigrant community, we’re experts in the healthcare visa process, and can be a true partner – not just an outside immigration law firm.
If you’re a hospital or healthcare system and you’re interested in learning more about how Tancinco Law can help you strengthen your staff, check out our website. And if you’re a healthcare professional interested in working in the US, reach out to us today!

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Updates

H1B Visa Registration to Start On March 9, 2021

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Every year, U.S. petitioners seeking to hire professionals who are foreign nationals undergo a lottery system to obtain H1B visas for their prospective employees. Thousands of applicants, including those from the Philippines, who are on student visas and graduated from U.S. schools and those who are foreign educated, have opportunities to apply for professional working visas as long as they are eligible. 

H1B is a professional working visa that will allow an individual to work in the United States for a specific U.S. employer and for a specific period of time. H1B visas allow workers to stay in the U.S. for up to three, or in some cases, six years and bring immediate family members with them. They also provide a pathway to receiving permanent immigrant visas or green cards.

The Lottery System

There are only 65,000 H1B visas each year plus 20,000 more reserved for individuals with master’s degrees or higher from U.S. institutions. With these limited numbers of visas, a lottery system has been put in place because there are more petitions submitted than the number of H1B visas available. Last year, there were 275,000 petitions filed which is way above the numerical limitations. 

For many years, the system was for the U.S. Citizenship and Immigration Services (USCIS) to choose randomly from among the submissions. Once it reaches its 85,000 petitions it will stop accepting petitions. It will then notify petitioners whose petitions were accepted or rejected.

The selection process changed on December 6, 2019 when USCIS announced a new electronic registrations system. This new system requires petitioner’s to register electronically (instead of filing a paper petition) with the USCIS and pay a $10 registration fee before an H1B cap subject petition may be submitted. Registration period is announced by the USCIS before actual filing takes place. Last year, registration started March 1, 2020 through March 20, 2020 or until enough registrations are reached to receive the numerical limit. USCIS then sends notices to H1B visas to those who are accepted or rejected.

The past Trump administration attempted to change the selection process.  USCIS would have prioritized H1B applications based on their wages with the workers offered the highest pay moving to the front of the line. On February 4, 2021, the USCIS announced that it will not implement this change because of technical challenges but instead will stick to the current lottery electronic registration system for the coming Fiscal Year 2022.

Registration period

USCIS announced that registration period begins on March 9, 2021 until March 25, 2021. Selected registrants by USCIS will be notified by March 31, 2021. USCIS will accept H1B petitions by April 1, 2021.

U.S. companies or businesses wishing to apply for the H1B visas for their employees need to plan early. They may contact their respective professional legal representatives to guide and assist them through the H1B process.

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Updates

Updated Advisory: Traveling to the Philippines and the U.S.

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Traveling to the Philippines

According to IATF Resolution No. 97 released on January 28, 2021, U.S. citizens or non-Filipinos who are not dual citizens and naturalized U.S. citizens are not allowed to enter without valid Philippine visas among other requirements. 

The resolution states that non-Filipinos may enter the Philippines, subject to the following conditions:

  1. With valid and existing visa at the time of entry;
  2. With pre-booked quarantine accommodation for at least seven nights in an accredited quarantine hotel/facility;
  3. Subject to COVID-19 testing on sixth day from date of arrival; and
  4. Subject to maximum capacity of inbound passengers at the port and date of entry.

Note that those with no Philippine passports but with valid visas who fall under the following categories will be allowed entry into the Philippines subject to the same requirements above:

  1. Foreign spouses of Filipino nationals; or
  2. Foreign parents of minor Filipino children and of Filipino children with special needs, regardless of age.

Those who comply with the above and who are allowed to enter the Philippines  will have to comply with the mandatory 7 days quarantine upon arrival at approved Department of Health (DOH) facilities. This rule applies despite negative COVID tests upon arrival. On the sixth (6th) day of arrival, the traveler will have to take a mandatory COVID-testing. 

Make sure before traveling and before making a hotel reservation that the hotel is an accredited quarantine hotel/facility by the Philippine Department of Health. For a list of accredited quarantine hotels and facilities, travelers should exercise due diligence by researching only on reputable information sources. Or they may contact their airlines for any list or their partner quarantine hotels for recommendation.

Traveling to the United States

All airline passengers traveling to the United States, including U.S. citizens and Lawful Permanent Residents (LPRs), are required to provide proof of a negative COVID-19 viral test or recovery from COVID-19.

Effective January 26,2021 all airline passengers to the United States ages two years and older must provide either a negative COVID-19 viral test taken within three calendar days of travel or provide a positive test result and documentation from a licensed health care provider or public health official of having recovered from COVID-19 in the 90 days preceding travel.  Passengers must also attest, under penalty of law, to having received a negative qualifying test result or to recovery from COVID-19 and medical clearance to travel.   

Airlines must deny boarding to passengers who do not meet these requirements.   U.S. citizens in countries where adequate COVID-19 testing is not available or may not be able to satisfy the requirements, should depart immediately or prepare to be unable to return to the United States until such time as they can meet the requirements.