Tag: Department of State

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Understanding Visa Retrogression

Understanding Visa Retrogression
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The Department of State (DOS) puts out a monthly document called the Visa Bulletin. It tells people when they can apply for green cards. The dates in the Visa Bulletin are like deadlines. They are based on how many green cards are available each year and where people are from. There are different categories for getting green cards, like for work or family.

In the Visa Bulletin, there are two lists for each category: one for when you can start applying and another for when you can finish the application. The U.S. Citizenship and Immigration Services (USCIS) looks at these lists to decide when you can send in your green card application. If there are enough green cards, you use the “Dates for Filing Applications” list. If not, you use the “Application Final Action Dates” list. It’s like waiting for your turn.

Usually, the dates in the Visa Bulletin either move ahead or stay the same every month. But sometimes, a date that was okay for applying one month might not be okay the next month. This is called “visa retrogression.” It means you must wait longer to apply for a green card.

Why does visa retrogression happen?

Each month, DOS estimates how many visas will be available in each category. DOS uses different factors to estimate available immigrant visas, including how many applications will likely be approved, how many people have a priority date in more than one category, and how many related family members will receive a green card with the main applicant. Sometimes, the demand for visas is greater than the number of visas that are available. In these cases, the DOS revises its previous estimate and uses an earlier “cut off” date to ensure that more visas are not issued than allowed.

What if my visa category retrogresses?

You will not lose your place in line and your priority date will not change. If you have already attended a visa interview or applied in the United States and your priority date retrogresses, your application will remain in line until your priority date is current again. If you have not yet attended a visa interview or applied for adjustment of status, then you must wait until your priority date becomes current to take one of those steps.

If my green card application is pending and my visa category retrogresses, what can I do?

While your green card application is still being processed by USCIS, you’re allowed to stay in the United States. This is called a “period of authorized stay.” You can also ask for permission to work and travel. You can keep renewing these permissions as many times as you need.

If your I-485 application has been with USCIS for at least 180 days, you can switch to a new job in a similar field.

Your children who applied for green cards with you might still qualify to stay in the U.S. even if they turn 21, thanks to the Child Status Protection Act.

What if my priority date moves ahead in a different visa category? Can I change categories?

Yes, you can ask to switch to a different visa category. For instance, if you have a pending or approved I-140 petition for a different work-related visa category with a current date, you can ask to use that for your green card application instead. You might need to fill out an extra form called I-485 Supplement J.

If you have a family-based case with a current date in a different category, you can also ask to change your green card application to that category by sending a written request to USCIS.

It’s a good idea to talk to an immigration lawyer to see if you can use either of these options.

When will I receive my green card?

It is often hard to predict how fast or slow the dates in the Visa Bulletin will move. You’ll get your green card when your turn comes up in the Visa Bulletin. If you’re still eligible when that happens, your application will be approved. It’s like waiting for your number to be called.

We are closely monitoring the monthly Visa Bulletin and encourage you to contact our office at Tancinco Law at (415)397-0808 or 1 888-930-0808 if you have any questions. You can also schedule an appointment through our website at www.tancinco.com or email us at law@tancinco.com

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Updates

U.S. Embassy Updates: Resolving Backlogs

U.S. Embassy Updates: Resolving Backlogs
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If the National Visa Center (NVC) determines you have paid the necessary fees, submitted the required immigrant visa application, Affidavit of Support, and supporting documents to NVC, you will receive an email that your case is documentarily complete and NVC will work with the appropriate U.S. Embassy or Consulate to schedule an appointment for you. NVC cannot predict when your case will be scheduled for an interview.

The U.S. Embassy or Consulate General tells NVC what dates they are holding interviews, and NVC fills these appointments in a first-in, first-out manner. Please keep in mind, applicants in a numerically limited (preference) visa category can receive an appointment, their priority date must also be current.

Since March 2020, the COVID-19 pandemic has dramatically affected the Department of State’s (DOS) ability to process immigrant visa applications.  U.S. embassies and consulates are working to resume routine visa services on a location-by-location basis as expeditiously as possible in a safe manner. Visa applicants waiting to be interviewed on their applications have been waiting longer despite the fact that they have been documentarily qualified. The reason for the delay of 1 -2 years before an interview is scheduled is the number of visa applicants that have been pending.

For the month of February 2022, the NVC released the following figures to indicate the number of cases that are pending worldwide:

Number of IV applicants whose cases are documentarily complete at NVC and ready for interview as of January 31

464,120
Number of documentarily complete IV applicants scheduled for February 2022 interview appointments

27,454
Number of eligible IV applicants still pending the scheduling of an interview after February 2022 appointment scheduling was completed

436,666

Note: In Calendar Year 2019 on average, 60,866 applicants were pending the scheduling of an interview each month.

A documentarily complete visa applicant will receive an update from the NVC every 60 days to make sure that the visa applicant is on the queue for a visa interview.

In a recent meeting of the American Immigration Lawyers Association with the DOS, one of the measures being taken to resolve the backlog is for the government to hire more consular officers. According to the State Department, Consular Affairs is working with the State’s office of Global Talent Management to ramp up hiring in FY 2022, but many posts will not see these new officers until the second half of FY 2022 or FY 2023, particularly for officers assigned to positions requiring language training. Hopefully, increased in consular officers will eventually reduce the backlog and interview dates for documentarily qualified visa applicants will be scheduled sooner.

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Advisory: Guidelines on Medical exams and COVID-19 vaccine

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As per US CDC and Department of State, COVID 19 is classified as Class A, Inadmissible Medical Condition beginning October 1, 2021:

  • For the safety of all staff and US visa applicants, a negative RT PCR test will be required to be presented prior to their medical examination. Tests should be done within 3 days of the medical appointment and at an accredited reputable laboratory.

RT PCR testing will be available onsite at SLEC-Ermita with results available within 24 hours and applicants are encourage to schedule their tests one day before their medical appointment date.

  • Applicants with signs and symptoms of COVID-19 or recent exposure to a possible COVID 19 case will not be allowed to proceed with their medical appointment and will be required to undergo a repeat RT-PCR test.

If positive, applicants are required to complete the mandatory isolation and quarantine periods:

  • 10 days from the time of a (+) RT PCR test for mild-moderate cases or 21 days for severe cases
  • 14 days for close contacts of active cases

COVID-19 vaccination is also now included in the required immunization for US visa applicants and must be completed before their medical reports can be completed.

Applicants who received COVID-19 vaccines requiring 2 doses (e.g. Pfizer, AstraZeneca, Moderna, Sinovac, Sinopharm) will receive other required vaccines on or after their 2nd COVID -19 vaccine dose. Proof of vaccination (e.g. vaccine record of certificate) should be presented.

Applicants are advised to schedule their medical examination with this in mind – either schedule the medical exam after their 2nd COVID-19 vaccine dose or have their medical exam in between the COVID-19 vaccination and wait for the 2nd dose to complete other required U.S. age-appropriate immunization.

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Change in State Department Policy: Child Born Abroad to Same-Sex Married Couple is a U.S. Citizen

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In a recent development relating to transmission of U.S. citizenship to children born abroad to same sex couples, the U.S. Department of State said that it will recognize birthright citizenship for children born abroad to married parents, as long as one parent is an American citizen. This is a policy change that makes it easier for same-sex couples to pass citizenship on to their children born overseas.

This change in policy was prompted by a series of federal court cases where the court sided with same-sex couples, many of whom married and started families abroad before the U.S. legalized same-sex marriage.

One of the cases filed was that of Laura Fieldne. Laura, a U.S. citizen, is married to her wife, Maria, a Spanish citizen.  Maria gave birth to their older daughter, L.F.,  in Spain with the help of an anonymous sperm donor.  Laura, being a U.S. citizen, reported the birth of LF abroad as a U.S. citizen but the registration was denied, stating that the qualifying US citizen parent does not have a biological relationship with the child. In 2020, Laura filed a federal lawsuit against the U.S. Department of State policy as being discriminatory and unconstitutional.

Under the Immigration and Nationality Act, while married couples can give birthright citizenship to their children born abroad if either parent is eligible to do so, children born “out of wedlock” must be biologically related to the eligible citizen parent. The State Department’s policy before was to treat babies born through assisted reproductive technology to same-sex couples as out of wedlock. This policy is certainly unconstitutional disregarding the dignity and equality of the marriages of same-sex couples. How can both same sex couples be blood-related to the child?

The change in policy is a welcome development to the immigrant and LGBTQ community. State Department spokesperson Ned Price said in a press statement that children born abroad to married parents can now have birthright citizenship if they have a genetic or gestational tie to at least one of their parents and if at least one of their parents is an American citizen.

“This updated interpretation and application of the [Immigration and Nationality Act] takes into account the realities of modern families and advances in [assisted reproductive technology] from when the Act was enacted in 1952,” Price said.

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Updates

U.S. Citizens with Expired Passports may travel back to the United States

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On May 21, 2021, the Customs and Border Protection and the U.S. Department of States announced that U.S. citizens will be able to return to the United States on an expired U.S. passport through December 31, 2021, if they:

  • are a U.S. citizen.
  • are currently abroad seeking to return to the United States.
  • are flying directly to the United States, a U.S. territory, or have only short-term transit (connecting flight) through a foreign country on their return to the United States or to a U.S. territory.
  • have an expired passport that was originally valid for 10 years (or 5 years if the individual was 15 years of age or under when the passport was issued).
  • have an expired passport that is undamaged and in their possession.

Please note that an expired U.S. passport may not be used to travel from the United States to an international destination for any duration longer than an airport connection.

DOS recommends U.S. citizens delay any travel abroad and reminds that return to the United States requires proof of a negative COVID-19 test result, taken within 72 hours of their flight’s departure.

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How Recent COVID-19 Operational Changes in U.S. Immigration Agencies Impact Your U.S. Immigration Petitions/Status

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As most U.S. government agencies resume operation, Tancinco Law, P.C. compiles a summary of what you need to know about your immigration petitions pending with different offices. In addition, we also have described travel restrictions imposed in the Philippines and the United States as it relates to a Filipino/American citizen traveler.

U.S. CITIZENSHIP AND IMMIGRATION SERVICE (USCIS)

Emergency Services

On June 4, 2020, the local U.S. Citizenship and Immigration Services announced that their local offices have re-opened for non-emergency in person services. As of this writing, USCIS is only scheduling local InfoMod appointments. These are cases where the individual has an emergent need such as ADIT stamp or proof of lawful residence and issuances of advance parole.  Physical interview schedules or rescheduled on immigrant benefit applications are yet to be mailed. Slowly USCIS will safely resume in person services. Those who need emergency document services may make an appointment www.uscis.gov/contactcenter or call 1 800-375-5283.  There will be no entry for those with no appointments. No walk in visits at the USCIS.

Naturalization: Oath Taking Ceremonies 

Notices of rescheduled oath taking ceremonies will be mailed out. So those who passed their citizenship tests and are waiting to take their oath will soon receive notices. As USCIS safely resumes in-person services, some naturalization ceremonies may be conducted differently than in the past. You may receive supplemental information from USCIS that provides detailed instructions for your ceremony. 

Biometrics

USCIS announced that in certain cases, it will issue notifications of biometrics reuse to eligible individuals instead of coming to the Application Support Center for biometrics. For those not eligible for the reuse of biometrics, notices of new schedule will soon be mailed on their cancelled biometrics appointments. If you do not receive notification of biometrics or appointments within 90 days of USCIS opening, you may call 1-800-375-5283.

DEPARTMENT OF STATES: CONSULAR PROCESSING

NATIONAL VISA CENTER (NVC)

Applications and submissions of documents with the National Visa Center’s online platform ,CEAC, is fully operational.

As of June 1, 2020, the National Visa Center will no longer accept or respond to inquiries through mail. Inquiries including urgent medical or humanitarian situations are to be submitted through a Public Inquiry Form at https://nvc.state.gov/inquiry. As of June 1, 2020, NVC is responding to inquiries received on May 23, 2020.

Documents will only be mailed if there are explicit instructions from the National Visa Center to do so and those instructions were received through email, telephone call or letter from the National Visa Center.

Beneficiaries of visa petitions are reminded of the “one year contact” requirement that they should apply for the immigrant visa within one year of notice of visa availability or risk termination of the registration  or revocation of the visa petition.

U.S. EMBASSY IN MANILA

The Department of State announced that each post will reopen on their own timeline based on the situation in the respective country. 

On Visa Applications and Interviews:

As per June 8, 2020 communication with the U.S. Embassy in Manila the following response was provided:

The U.S. Embassy in the Philippines has canceled all immigrant and nonimmigrant visa interviews scheduled through July 3 due to the Philippines’ community quarantine measures to reduce the spread of COVID-19.

We will resume routine visa services as soon as possible but are unable to provide a specific date at this time. We appreciate your patience and understanding.

After the community quarantine is lifted in Metro Manila, all affected applicants should reschedule their visa interviews through the Embassy call center by phone at +63 (2) 7792-8988 or +63 (2) 8548-8223, or through the online appointment system at ustraveldocs.com/ph.

There is no fee to change an appointment and visa application fees are valid for one year in the country where the fee was paid.

With no specific date and time to reopen, all visa applicants who wish to reschedule their interview may call the phone numbers provided or go online and access the U.S. Embassy’s online appointment system.

On Expired Visa and Inability to Travel Because of COVID-19

If a visa has been issued but the applicant cannot travel, the U.S. Embassy in Manila when it opens may be able to reprint a visa foil if the underlying documents have not expired. Where the documents expire while waiting to be able to travel to the U.S. the applicant will be required to obtain new documents. 

IMMIGRATION COURTS

The immigration judges continue to hear cases of individuals who are in detention. 

On Monday, June 15, 2020, Honolulu Immigration Court will resume hearings for non detained cases.

For individuals within the jurisdiction of Boston, Buffalo, Dallas, Hartford, Las Vegas, Memphis and New Orleans, immigration court hearings for non-detained cases will resume on Monday June 29, 2020. In all other immigration courts outside of those mentioned, hearings are postponed through and including Friday June 26, 2020. Those with hearing notices scheduled on or before June 26, 2020 will receive new Notices of Hearing. It is more important to check with your legal counsel about the status of your hearing with the immigration court so as not to miss your hearing dates.

IMMIGRATION & CUSTOMS ENFORCEMENT (ICE)

ICE Arrests

ICE maintains that in light of the ongoing COVID-19, the agency adjusted its enforcement posture beginning March 18, 2020 and limited arrest to those cases that are with highest priorities to promote life saving and public safety activities. Note that this does not mean that they are suspending arresting individuals with criminal history or those subject to mandatory detention.

ICE emphasized that it shall abide by its sensitive locations policy during the COVID-19 crisis and will not carry out enforcement operations at or near health care facilities, such as hospitals, doctors offices, accredited health clinics & emergent or urgent care facilities. Note though that ICE agents are present during protests despite the fact that these are considered sensitive locations. Unauthorized immigrants including DACA recipients joining the rallies/protests must be aware of their rights should they be taken into custody.

ICE Check Ins

Individuals required to report regularly to ICE for in person check-ins have been allowed to do so through alternative means. As of April 17, 2020, the in-person reporting has been temporarily suspended. However, individuals who are subject to the reporting requirement in lieu of detention/removal are still mandated to report either by calling or telephone check ins. For stays of removal applications, ICE-ERO will accept I-246 by mail.

 

TRAVEL TO THE PHILIPPINES AND UNITED STATES

Travel to the Philippines

Under existing guidelines, arriving U.S. citizens or non Filipinos are still not allowed to enter the Philippines even after 31 May 2020. Only OFWs, Foreign nationals married to Philippine citizens including their dependent children and foreign diplomats are allowed to enter the country.

All non-Filipinos who intend to depart the country can leave anytime. Filipinos are not allowed to leave unless they are OFWs, permanent residents, or holders of student visas in their countries of destination.However, they may have challenges in booking a flight as most of the international flights remain suspended.

Passengers Not Subject to the Restrictions and Who Are Arriving in the Philippines Subject to Mandatory Quarantine

All travelers to Manila will undergo the usual thermal scan upon arrival. If a passenger is showing symptoms of the COVID-19, s/he will undergo a real-time polymerase chain reaction (RT-PCR) test. Travelers whose test results are positive will be transferred to a designated hospital for further medical management.

Those who do not have symptoms will undergo a mandatory quarantine where a baseline rapid test will be conducted. While waiting for the results, passengers must stay in either a government designated quarantine facility or in a Bureau of Quarantine approved quarantine hotel for 14 days.

After quarantine is completed, individuals may go about their travel plans subject to quarantine protocols of the local government of their destination.

Filipinos who are not OFWs and Non-Filipinos will shoulder their own payment for the accommodation.

Traveling to the United States

Philippine citizens are not banned from entering the United States as long as they have valid U.S. temporary or permanent resident visas. Those who traveled internationally in the past 14 days and return to the United States, they are required to self quarantine, stay home and monitor their health. 

Unless the traveler is a U.S. citizen or a permanent lawful resident (green card holder), s/he will be banned from entering the U.S. if s/he traveled from the following countries: China, Hong Kong and Macau, Iran, the UK and Ireland Schengen area which encompasses the following 26 European Countries: Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

U.S. citizens and lawful permanent residents of the United States, certain family members, and other individuals who meet specified exceptions who have been in one of the countries listed above in the past 14 days will be allowed to enter the United States through on of these airports: 

  • Boston-Logan International Airport (BOS), Massachusetts
  • Chicago O’Hare International Airport (ORD), Illinois
  • Dallas/Fort Worth International Airport (DFW), Texas
  • Detroit Metropolitan Airport (DTW), Michigan
  • Daniel K. Inouye International Airport (HNL), Hawaii
  • Fort Lauderdale-Hollywood International Airport (FLL), Florida
  • George Bush Intercontinental Airport (IAH), Texas
  • Hartsfield-Jackson Atlanta International Airport (ATL), Georgia
  • John F. Kennedy International Airport (JFK), New York
  • Los Angeles International Airport, (LAX), California
  • Miami International Airport (MIA), Florida
  • Newark Liberty International Airport (EWR), New Jersey
  • San Francisco International Airport (SFO), California
  • Seattle-Tacoma International Airport (SEA), Washington
  • Washington-Dulles International Airport (IAD), Virginia 

After arriving in the United States from one of these countries, CDC recommends that travelers stay home and monitor their health for 14 days. 

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

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Updates

Visas for Spouses & Minor Children of Green Card Holders Available for December 2019

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Normally, one has to be a U.S. citizen to be eligible to file a simultaneous I-130 petition and I-485 application for adjustment of status. Petitions by U.S. citizens on behalf of spouses, parents and minor children are considered as immediate relatives and visas are immediately available. In the last couple of months, the Visa Bulletin under the F2A visa category which covers petitions by green card holders for their minor children and spouses is reflecting a “current” visa availability. Filipinos who are green card holder petitioner’s in certain circumstances may also file simultaneous I-130 petition and I-485 adjustment of status under the F2A visa category.

Claire was petitioned by her mother under the F1B visa category. Her mother is a U.S. citizen who waited for more than 10 years before Claire was able to immigrate to the U.S. under the F1B visa petition. Claire has a minor child, Jason, but was not married to Nico, the father of her child.

When Claire immigrated in 2018 to the United States, she was able to take her minor child Jason with her. But Nico was left behind in Manila. Recently, Nico arrived in the United States on a student visa (F1), he is taking up Masteral Degree related to his career. Claire and Nico recently got married and Claire filed a petition for Nico under the F2A visa category (spouse of a green card holder) on December 1, 2019.

Nico regularly follows and reads the Visa Bulletin issued by the Department of State (DOS) to determine when his visa may become available. He noticed that for the months of F2A, the Final Chart on the Visa Bulletin shows that the F2A has the letter “C” on it. But the Filing Chart shows a 2009 priority date. What does the “C” status on the F2A category mean for Nico? Can Claire now file for his petition and simultaneously adjust his status?

Understanding the Two Charts on the Visa Bulletin

The monthly Department of State Visa Bulletin has two different charts. The DOS will post two charts per visa preference category. The charts are: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply).

According to the recently released November 26, 2019 policy guidance, when USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, generally, the Dates for Filing Applications chart will be used to determine when to file an adjustment of status application with USCIS. Otherwise, if the priority is current as indicated on the Application Final Action Dates chart, then the final action date chart must be used to determine when to file an adjustment of status application with USCIS.

This means that despite a cut-off date on Filing Chart (second chart), if the Final Action chart (first chart) shows a “C” or a current priority date for a visa category, the application for adjustment of status may be filed immediately for that specific month.

Going back to the case of Nico, who is the beneficiary of an F2A petition, since the Final Action chart indicates a C (or a current priority date), he may now file for an adjustment of status. This is because the C indicates that a visa is available for the month of December 2019. However, unlike immediate relative petitions of U.S. citizens, unless there is 245(i) eligibility, beneficiaries of F2A petitions must be in lawful status to be able to file for adjustment of status.

(Atty. Lourdes Santos Tancinco, Esq. is an immigrant advocate and a principal partner at 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 this website tancinco.weareph.com/old)

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Revocation of U.S. Passports of Certain Sexual Offenders

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

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

Anti-Child Sexual Tourism

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

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

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

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

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

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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)