Tag: Executive Action

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7 Immigration Policy Changes Important to Filipinos

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On his first day in office, President Joe Biden will introduce hundreds of pages of immigration executive orders that will cover most of the policies he pledged to change. With several provisions that are proposed, the more than 4 million Filipinos residing in the United States and their relatives still waiting to migrate are looking forward to major change in policies. Below are 7 immigration related agenda that may have the most impact for Filipinos.

1. The DACA Program

Deferred Action for Childhood Arrivals (DACA) recipients are immigrants who arrived in the United States at a very young age. After several attempts to pass legislation to confer legal status to this category of immigrants and the failure of Congress to pass law, former President Obama issued an Executive Order giving these young immigrants protection from deportation and issuing them employment authorization. When President Trump came into office in 2017, one of his first executive actions was to rescind the DACA program. More than 800,000 DACA recipients were affected by Trump’s rescission of the program. Court litigation ensued and the Supreme Court affirmed the legality of the DACA program. While the U.S. Citizenship and Immigration Services started implementing the DACA protections to initial applicants, it did so only a few months ago leaving thousands of DACA recipients still in limbo about their status.

During this pandemic crisis, more than 200,000 DACA recipients are considered essential workers. Thus, in the Biden proposal, green cards or permanent immigrant visas will be granted to DACA recipients with a pathway to U.S. citizenship in three (3) years.

2. FWVP Program

More than 200,000 Filipinos were conscripted to join the U.S. Armed Forces during World War II (WWII)when the Philippines was still a territory of the United States. Under the War Powers Act, those who fought under the American flag may be entitled to apply for U.S. citizenship. All 66 allied countries nationals who fought side by side with the Americans during WWII were able to obtain U.S. citizenship but not the Filipino Veterans. A 1946 Rescission Act was enacted declassifying their services during WWII as not considered services for purposes of the veteran benefits. Hundreds of thousands of veterans lost their opportunities to apply for U.S. citizenship until 1990, when the Immigration and Nationality Act was enacted allowing belatedly the then 70 and 80 year old veterans to apply for U.S. citizenship.

As soon as they became U.S. citizens, they started filing petitions for their children. As the system in place takes more than 20 years to be current due to the severe backlog, most of the veterans who came in 1990s have already passed away. In the last 5 years, approximately 8,000 veterans are still alive but they have been slowly reducing in numbers. The Obama Administration proposed a Parole program specifically for the families of the veterans to enter the United States and be reunited with their veteran parents who are now of advanced age and sickly. This parole program is the Filipino World War II Veterans Parole Program. This Program only has a 5 year validity until 2021. Last December 2020, the Trump administration issued a notice to rescind the FWVP after 60 days of comment period. President Biden should consider supporting legislation that will give immediate green card status to families of the veterans; or, if not, extend the FWVP program.

3. Family Reunification

Family unity is very important to immigrants, and this applies most specially to Filipino immigrants. Petitioning immediate relatives by U.S. citizens is faster than petitioning adult children and siblings. For those being Petitioned from the Philippines the waiting period for visas to become available for adult married children and siblings of U.S. citizens takes approximately 20 years. And for those who are unmarried adult children, the waiting period is approximately 10 years.

With the pandemic crisis, even those whose visas are available who waited more than 20 years are not being processed at the U.S. Embassy because of the Trump Presidential Orders banning certain immigrants from entering the United States. Visa applications of parents and fiances of U.S. citizens are also put on hold at the U.S. Embassy. President Biden should reform the immigration system by adding more visas to the Family based category to reduce the backlog and make it faster for U.S. citizens or green card holders to petition their family members. Trump’s Presidential Proclamations 10014 and 10052 banning the entry of immigrants and processing of their visas at the U.S. Embassy must be revisited and rescinded.

4. Pathway to Citizenship for Undocumented Immigrants

About 2% of the 11 million undocumented immigrants are unauthorized Filipino immigrants. These are mostly those who fell into the cracks because of the broken immigration system leaving them no option to legalize their status. These unauthorized immigrants are with their family members in the U.S., are hardworking and regularly pay taxes. It is just an opportune time to provide them a pathway to U.S. citizenship.

The Biden administration is introducing the immigration reform bill that will allow unauthorized immigrants an 8 years pathway to citizenship by granting them green cards after 5 five years and allowing them to obtain U.S. citizenship in 3 years. This proposal is the centerfold of the immigration bill introduced by Biden and needs to be passed by Congress to become effective.

5. Public Charge Rule

One of the salient feature of the Trump legacy on immigration is not just curbing illegal immigration but also legal immigration. Deeply disguised as promoting national interest, the public charge rule also known as the wealth test prohibits the grant of immigrant visa if the petitioner or the beneficiary does not have enough financial resources to show that the beneficiary will not rely on public assistance for their subsistence. Restrictive rules were issued making it difficult for US citizens with meager income to be reunited with their families. There is also the 2019 Trump “uninsured ban” rule where those coming to the United States must be able to show proof within 30 days of arrival that they have health care insurance coverage. All these restrictive rules have become barriers to lawful immigration and it is cloaked in a way that benefits the U.S. when in fact it is based on the Trump administration’s assumption that immigrants are a drain to the nation’s resources. This has to change. Most of Filipino immigrant families are educated and bring their skills and knowledge to flourish and succeed in this country. President Biden should rescind the restrictive changes made by the Trump administration related to the public charge rule.

6. Healthcare Workers

During this global pandemic, the Filipino immigrants who are admired most as heroes are our health care workers. We have many Filipino caregivers, physical therapists, medical practitioners and nurses. These essential workers have proven their worth especially during this time of crisis. Current immigration law makes it difficult for most healthcare workers to obtain their immigrant visas. Even when the priority dates for employment-based third preference became current for Philippine nationals, it is usually still subject to long delays of months or years for the healthcare professionals to migrate to the United States. The increasing need for the essential healthcare workers had never been critical and President Biden should consider re-establishing a temporary visa category for nurses like before such as the H1C and H1A visas. This category will make it faster for healthcare workers to enter the United States.

7. Other Employment Based Visas

Philippines was included again in the list of those countries eligible to participate in a temporary working visa program or the H2B. Realizing how it will be in the best interest of the U.S. to make sure that the Filipinos are added to the workforce in the construction of military bases in Guam. This is a positive development. But also, there are Filipinos who are holders of H1B, J and L visas that have been affected by the Presidential Proclamation banning them from entering except those covered by litigation. President Biden should rescind this proclamation and reverse the H1B regulatory changes that Trump released prior to his departure from the White House.

All 7 immigration issues are just a few of the immigration priorities of the Biden Administration. As we maintain our faith in the new administration, we also hope that the Democratic led Congress will find it a priority to pass the Biden’s immigration reform bill for all these provisions to have a meaningful impact on our Filipino immigrants and their families.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com, or facebook.com/tancincolaw, or through her firm’s website at www.tancinco.com)

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USCIS proposes parole status for foreign entrepreneurs

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

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

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

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

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

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

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

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

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Global Pinoy

US high court’s one-line ruling only a temporary defeat for DACA+

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“The judgment is affirmed by an equally divided Court,” this is the one-line ruling of the highest court of the land in the much awaited decision on Obama’s Executive Action on DACA extension and DAPA program. After more than two years of waiting for the injunction to be lifted on the programs and looking forward to a decision on the merits, immigrant rights supporters were disappointed when the Supreme Court laid out its ruling in a deadlock vote of 4-4. But it’s only a temporary defeat; there are still legal ways to move forward with the executive action.

Jose Antonio Vargas, a Filipino national, is the most outspoken advocate of the DREAM Act and the Deferred Action for Childhood Arrivals (DACA). In 2012 when President Obama announced the DACA program for the first time, he was not included on the list of those qualified to apply even if he was only 12 years old at the time of his arrival in the US. The first DACA program in 2012 included a requirement that the applicant must be below 31 years old at the time of the application for deferred action under DACA. Jose just turned 31 years old in 2012 and lost the opportunity to apply for DACA.

His hope of getting temporary relief under DACA was revived when in 2014, President Obama announced the DACA+ and the DAPA executive actions. For the DACA+ program, the age ceiling of 31 years old was eliminated, maintaining only the minimum age requirement of 15 and below at the time of entry into the United States. Jose would have qualified, but the anti immigrants would not allow the DACA+ and the DAPA program to push through. Conservative states filed a lawsuit against the Obama administration, and a 5th District Court Judge issued an injunction against its implementation.

The litigation reached the Supreme Court, and there was a hearing on the merits. Unfortunately, on June 23, 2016, the Supreme Court did not issue a decision, but rather announced a per curiam ruling stating that the court was divided and that the judgment of the lower district court is affirmed.

The arguments in favor of the DACA+/DAPA Executive Actions seemed to make more legal sense during the hearing. It obviously did not turn out that way. The split in the evenly divided Supreme Court shows the sharp ideological divide between the factions in it. The feeling is that it is a politicized court with an ultra-conservative right and a liberal left-wing faction.

Had Justice Scalia not passed away recently, the conservatives would have had a clear victory. On the other hand, had Congress done its job and voted on President Obama’s replacement for Justice Scalia’s seat in the Supreme Court, it would not be inconceivable that the DACA+/DAPA Executive Actions would have been upheld.

To put this in perspective, this is only a temporary defeat for the immigrants. There are still legal ways to move forward with Executive Action as no decision on the merits was issued. But to initiate a new action would take time, which the current president no longer has. Come November 7, a new president will be elected. Whoever is elected as the next president gets to nominate the next Justice for the Supreme Court vacancy. That single appointment can tip the balance of the Supreme Court’s ideological divide to the left (or to the right) for years and years to come; hence, the importance of voting for the right president in the coming November election.

(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

Fear of deportation arises over court-issued injunction

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A day before the US Citizenship and Immigration Services was scheduled to receive applications for Obama’s program known as Deferred Action on Childhood Arrivals (DACA) expansion, District Judge Andrew Hanen issued a temporary injunction. This ruling will temporarily put a hold on the implementation of Obama’s immigration programs.

Joseph was looking forward to filing his application for his employment authorization document. Having entered the United States when he was 10 years old, his parents never took necessary steps to legalize his stay.

On Nov. 20, 2014, when President Barack Obama announced his executive actions expanding the Daca, he became hopeful about getting a temporary work permit. Joseph completed his degree in computer science from a state university but could not get a better job because he does not possess a work permit.

When he heard about the temporary injunction on Obama’s executive actions, Joseph was disheartened and is now apprehensive again about his situation.

States’ lawsuit
In the case of Texas v. United States of America, a lawsuit was filed by 26 states against Obama’s executive actions. The plaintiffs questioned the constitutionality of the executive actions as it bypassed the US Congress on an immigration matter. This case is pending before Federal District Judge Andrew Hanen of Brownsville, Texas.

Judge Hanen was a nominee of George W. Bush, assigned to the United States District Court for the Southern District of Texas. He is a known conservative who has been a critic of Obama’s immigration policies. So when the decision to suspend the implementation of the program that will offer work permits and offer a three-year reprieve from deportation was issued on Nov. 16, 2014, immigrant advocates were not surprised.

The Obama administration has already announced that they are filing an appeal to a higher court on this decision.

In the meantime, thousands of undocumented Filipinos, potentially eligible for the Dapa (Deferred Action for Parental Accountability) and Daca programs of the executive actions in question and who are similarly situated as Joseph, are anxious about the effect of this injunction. The excitement about filing for benefits under the executive actions was suddenly cut short by this temporary injunction. It was an affirmation of the uncertainty of the executive actions, which validates the skepticism of many on Obama’s Daca and Dapa programs.

There is always the concern whether coming out of the shadows means risking one’s fate to becoming vulnerable and risk being sent back home to the Philippines after the three-year deportation reprieve is over. There are some who are placed in a situation of accepting any type of odd job just to earn and be able to send money to their families back home.

The fear of the consequences of the unknown may deter many from filing. Yet, there are also many who are hopeful as this may just be a one-time opportunity to obtain work permits. Thus, to some this may be a poisoned apple. To others, this is an apple that is already ripe and should be picked before it rots and falls to the ground.

Many experts agree that the Nov. 16, 2014 district court judge’s injunction is only a temporary hold and that full implementation of Obama’s executive actions will just be a matter of time.