Tag: EB3 visa

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10 Immigration Issues Important to Filipino Immigrants in 2023

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Family reunification and better economic opportunities are still the most significant considerations for immigrating to the United States. Intending immigrants or those who want to work in the United States also face several challenges. Below are just a few of the many important issues that are either beneficial or are drawbacks to Filipino immigrants.

1. Visa Backlogs and Lengthy Waits

Priority for issuance of visas  to immediate relatives of U.S. citizens is the current policy of the U.S. Department of States. So in 2022,  we have seen more visas being issued under this category which includes parents, minor children and spouses of U.S. citizens. Fiance petitions by U.S. citizens have also benefited from this priority preference.

Unfortunately, those who do not fall under this priority preference experience lengthy waits before they are called for interviews. The U.S. Department of State reported that as of December 2022, there are globally 377,953 who are classified as documentarily qualified and only 33,406 have been scheduled for interviews. The interviews are being scheduled according to date of completion of submission of documents to the National Visa Center. So the earlier the documents and forms are submitted the sooner that the visa applicant may be added to the queue,

2. Retrogression of EB3 Other Workers- “Caregivers” 

In the last couple of years, the priority dates for other workers under the third preference employment based category for Filipinos have been current. When a priority date is current, that means that visas are available. Hence, many unskilled workers including our health caregivers were issued visas under this category. Unfortunately, in May 2022 of this year, this visa category retrogressed to June 2020.. There will be a couple of more years of wait but the good news is that the filing chart allows for the processing of visa petitions with priority dates of June 2022. 

3. Registered Nurses and Physical Therapists

Registered Nurses, Physical Therapists and other allied health care workers other than those mentioned under the other workers category are still “current” for purposes of filing and final issuance of visas.  

This year, there was a proposed legislation for the elimination of the numerical per country quota. If this is going to be re-introduced again the visas under the EB3 category will be severely impacted.  Healthcare professionals looking to have their visas issued must get their applicant processed without further delay to avoid being affected by any future legislation.

4. Waiver of Interviews of Non-immigrant Visas At the U.S. Embassy

The State Department waived most nonimmigrant visa interviews for individuals renewing visas that expired in the last 4 years, and it authorized interview waivers for many work visa applicants. Included in this waiver of interview are visitor (B1/B2)  visa holders. About half of all nonimmigrant visa applicants no longer need a visa interview. This has helped to partially recover the backlog of nonimmigrant visa processing. This policy shall remain in place until December 2023.

5. Human Trafficking Awareness & Immigration Relief

In California, at least 2 cases of human trafficking and labor exploitation were filed against Filipinos. Unfortunately, their victims are also from the Philippines. The latest one is the case in San Francisco where a couple was charged with exploiting and trafficking a woman who took care of their child. Human trafficking survivors may be eligible for lawful status, employment authorization, and a potential path to permanent residency.  There has to be an awareness on the part of U.S. employers on what constitutes human trafficking and individuals must learn to assert rights against traffickers to prevent becoming victims of  inhuman and degrading  treatment by unscrupulous individuals.

On December 27, 2022, President Biden signed the “Countering Human Trafficking Act of 2022,” which codifies and expands the Department of Homeland Security’s (DHS) Center for Countering Human Trafficking (CCHT). The bill authorizes $14 million to carry out the Act and ensures that the CCHT is staffed with at least 45 employees to carry out the Department’s critical work to combat human trafficking.   

6. Public Charge Rule

In March 2021, President Biden rescinded a public charge rule that, in effect, banned most family sponsored  immigrants with low incomes. 

On December 23, 2022, a new final rule on public charge went into effect. Under the new rule, it is safe for immigrants and their families to use health, nutrition, and housing programs for which they qualify. Health care programs, including Medicaid and COVID care, housing, food programs, and many other vital services.

Only those deemed likely to be primarily dependent on cash aid for income maintenance or long-term care at government expense could be denied for public charge.

Immigrant visa applicants must consult with their legal counsel on how this new public charge rule will benefit them in their applications.

7. Availability of H2B Temporary Working Visas 

Unlike other countries,  U.S. immigration law has very  limited numbers of temporary visas that are available to non-agricultural unskilled workers. In December 2022,  Biden administration increased the numbers of H2B visas to 64,716  for Fiscal Year 2023. About 44,700 visas are allocated to returning workers who received H2B visas during the last 3 years. These additional visas are available this winter and summer of 2023.

A few years back Filipinos were banned from receiving H2B visas but this suspension has already been lifted. U.S. employers may avail this type of visa for certain temporary and seasonal occupations such as restaurant/hospitality, maintenance, construction, landscaping among others.

8. Returning Green Card Holders

Three years into the pandemic and there are still green card holders who “overstayed” in the Philippines and have not returned to the United States. Those who stayed beyond one year outside the United States are considered to have abandoned their residence unless a returning resident visa is obtained from the U.S. Embassy. Not all returning resident visa applicants are approved and it is important to obtain legal counsel to determine what factors may be raised to increase the chances of returning to the United States. 

9. Legalization or Registry

During President Biden’s first month in office, he expressed his intention to address the issue of unauthorized immigrants and he shall propose a pathway to citizenship. More than 11.5 million unauthorized immigrants are still awaiting for legalization. And because of lack of bi-partisan majority in U.S. Congress who will support this bill, no legislation has been passed yet. 

Will there be a legalization? Hopes for the passage are dwindling away..until, a proposal for a modification of registry date is seen to have offered a ray of hope. If the registry date is modified (through legislation) from 1972 to 2012, at least 6.8 million undocumented may be eligible to apply for green cards. Registry allows certain non-citizens who are long term residents of the United States, but who are either undocumented or present in the country under some sort of temporary immigration status to register as lawful permanent residents. 

10. DACA

About 28,000 Filipino DREAMERS may be eligible for an initial application for Deferred Action on Childhood Arrivals (DACA) according to the data gathered by the  Migration Policy Institute. But on October 5, 2022  the 5th Circuit Court of Appeals ruled that the DACA program was unlawful and sent the case back to the lower court to consider the Biden’s administration’s new DACA regulations On October 14, Judge Hanen partially blocked the DACA regulation from going into effect.

While DACA initiative has provided deportation protections and work authorizations to over 800,000 of people who arrived in the United states as children, this temporary solution has been hanging in the balance and faces multiple legal challenges with administrative attempts to end the program. DREAMERS were brought by their parents at a very young age and did not make the decision to come and live in the United States. They grew up and identify themselves as Americans. Giving them a path to citizenship is long overdue. Thus, this 2023,  it is more urgent for Congress  to pass a permanent solution to protect and defend our DREAMERS.

(Atty. Lourdes S. Tancinco is an immigration attorney and immigrant rights advocate based in the San Francisco Bay area and a partner at the Tancinco Law P.C.. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

Categories
Updates

Visas Available for Filipino Registered Nurses, Physical Therapists & Other Healthcare Workers (including Caregivers)

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October 2020 Visa Bulletin Indicates Priority Dates for EB3 are “Current”

In a recent positive development for visa applicants under the employment-based third preference (often referred to as EB3) category visa, the Department of States just released its October 2020 Visa Bulletin on September 24, 2020. The new release shows that ALL employment-based preference categories for Filipino nationals are now current. When a priority date of a visa petition is current, it means that the visas are available. Many Filipino EB3 visa applicants will benefit from this visa availability including professionals, skilled or even unskilled workers. To take advantage of this visa availability, however, one need to understand the process of immigrating to the United States through employment-based preference categories.

Concurrent Filing of Employer Petition and Adjustment of Status

Persons seeking to immigrate to the United States as employment-based immigrants undergo two processes before an immigrant visas can be issued.

First, they must establish that they qualify in one of the employment-based immigrant categories, by having an employer file an “Immigrant Petition for Alien Worker”.

Second, is either the “Adjustment of Status” for those who are already present in the United States; or, “Consular Processing” for those who are still outside the United States. For those who are already in the US, the Adjustment of Status, can be concurrently filed with the employer petition.

The U.S. Citizenship and Immigration Services (USCIS) does not have to require a previous approval of an employer petition before being able to pursue the second step of the Adjustment of Status process. This is the “concurrent filing” which allows persons applying for permanent residence to file both the Application to Register Permanent Residence together with the employer’s Immigrant Petition for an Alien Worker. This is a huge advantage as applicants who are currently inside the US can wait for their greencard approvals in the United States (without needing to leave the country) and at the same time be qualified to get an employment authorization card pending the greencard approval.

Concurrent filing affects only the Adjustment of Status process and is permitted for applicants who are already in the United States and does not apply to those pursuing consular immigrant visa processing at the U.S. Embassy. It is important to remember, however, that there are numerous legal requirements that an applicant needs to qualify in order to benefit under this concurrent filing procedure. Among others, the applicant is required to be in “lawful” status or has 245(i) eligibility and not subject to grounds of inadmissibility.

Pre-Certified Occupations: Nurses & Physical Therapists

This new development benefits EB3 immigrants who are professionals, as well as other skilled or unskilled workers whose PERM applications have already been approved. Those exempt from the labor certification and who are considered pre-certified under the Schedule A occupations as per Department of Labor regulations may also concurrently file their applications.

There are a significant number of Filipino professionals who are beneficiaries of existing EB3 petitions. But we also know that there are many more Filipino nurses and physical therapists who are already pre-certified and can immediately take advantage of this visa availability. Schedule A occupations are those jobs for which there are not a sufficient number of U.S. workers who are able, willing, qualified, and available to fill the number of available jobs that exist in the United States, and the wages and working conditions of U.S. workers similarly employed will not be affected by the employment of foreign workers in Schedule A occupations. Currently, there are only two designated Schedule A occupations: First are the RNs; and, and Second, are the Physical Therapists.

Other health care workers such as licensed vocational nurses (LVNs), licensed practical nurses (LPNs), certified nurse assistants (CNAs), as well as nurses’ aides and caregivers do not qualify for Schedule A pre-certification. However, they may still qualify and benefit under this concurrent filing if they have approved Labor Certifications or PERMs.

Due to the pandemic and the visa restrictions brought about by Trump Proclamations, there have been very few family-based visas that were issued the past few months; thus, resulting in excess visa numbers that were re-allocated to the employment-based petitions. The forward movement of the priority dates is a result of the infusion of unused family-based visa numbers to the employment-based visas for Fiscal Year 2020.

It is uncertain as to when the employment-based preference categories for Filipino nationals will remain current. But for now until October 31, it is encouraged that those who do qualify explore ways to immediately apply for the visas while the availability remains current for it is unknown when the backlog will build up again.

(Lourdes ‘Atty Lou’ S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law PC and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw, LinkedIn or at 1-888-930-0808)

Categories
Updates

July 2019 Priority Dates Advanced to “Current” for Filipino Nationals Under the F2A & EB3 Visa Categories: What This Really Means to Visa Applicants

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There is good news for visa applicants under two visa categories. For the July 2019 Visa Bulletin, applicants from the Philippines who are waiting for their priority dates to become current under the F2A and EB3 category will benefit from the “current” availability of priority dates.

F2A visa categories are spouses and minor children of lawful permanent resident while EB3 categories are the professionals, skilled workers and other workers. The published July 2019 visa bulletin indicates that the F2A and EB3 categories’ priority dates are current.

Generally, a visa applicant may initiate the application for visa and be interviewed for his/her eligibility when a priority date is current. The immigration process undertaken may either be an application for adjustment of status for those who are already present in the United States or through consular processing for applicants who are still in the Philippines.

Perplexing – Current But With Cut Off Date?

The spouses and minor children of lawful permanent residents who have approved I-130 petitions with priority dates that are current may initiate either adjustment of status or consular processing. The fact that is it current means that a visa is available. However, if one reads the July 2019 visa bulletin, what is noticeably unusual is the date under the ”filing” chart. While the “final” chart clearly shows that priority date under F2A as current, the filing chart indicates a cut off date of March 8, 2019. So even if the priority date is current, F2A beneficiaries with March 2019 are the only ones who may adjust or undergo consular processing.

Charles Oppenheim of the U.S. Department of State stated that the cut off date of March 2019 “filing” chart was done intentionally to avoid completely opening floodgates to consular filings under this category. He also explained that moving the final action date to current is intended to spur responses to the NVC letters but it is not expected to have any impact on the number of usage for the current fiscal year (FY2019). What this means is that F2A beneficiaries from the Philippines may start the consular processing but since the number of visas are still the same, there may be a possibility that this F2A category will retrogress again in the coming months. Those who are mostly likely to benefit are those with priority dates of March 8, 2019 under the F2A.

EB3- Visas Available But Only for a Limited Time

Employment-based third preference, or most commonly known as EB3 category, is the classification for professionals, skilled workers and unskilled workers. Most healthcare professionals fall under this category like the registered nurses, physical therapists and occupational therapists. Other workers under this category includes unskilled workers or those who do not require bachelor’s degrees such as the caregivers.

Unlike the F2A visa categories, the filing and final charts under the EB3 category indicate that the status is “current”. Filipinos who have EB3 visa petition approvals are now ready for visa processing this month of July 2019.

Given these positive changes this month of July, Filipinos with approved petitions under the F2A and EB3 categories must take immediate action to take advantage of this noteworthy update on the visa bulletin. There is a short window to file between now and the end of July 2019. According to Mr. Oppenheim, It is anticipated that the final action date for EB3 will retrogress again next month.

(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 her website tancinco.weareph.com/old)