Tag: h2b visa

Categories
Featured

10 Immigration Issues Important to Filipino Immigrants in 2023

Share this:

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

2023: The year of more H-2B visas

2023: The year of more H-2B visas
Share this:

The Department of Homeland Security (DHS) will add more H-2B visas in 2023, raising the cap by at least 64,000. This is on top of the regularly available H-2B visa count of 66,000.

The addition for H-2B visas targets additional seasonal workers as businesses continue to roar back with the decline of the pandemic.

Here is the breakdown: The H-2B supplemental includes an allocation of 20,000 visas to workers from Haiti and the Central American countries of Honduras, Guatemala, and El Salvador. The remaining 44,000 supplemental visas will be available to returning workers who received an H-2B visa, or were otherwise granted H-2B status, during one of the last three fiscal years.

Why does this matter? Let’s do a review first of what the H-2B visa is for.

What is the H-2B?

The H-2B visa is also known as the temporary nonagricultural worker visa.

These are given to non-Americans who would like to work for companies that would otherwise suffer “impending irreparable harm” if they did not employ non-citizens.

This can be American businesses in varying fields such as hospitality and tourism, landscaping, seafood processing, and others.

The conditions

Here are the conditions that need to be met for granting the visa:

  1. The employment needs to be for a limited period
  2. The limited period must be less than a year
  3. The employers must prove that there are not enough American workers to do the temporary work
  4. The employment of the non-Americans must not affect the wages for American workers posted in similar jobs

Those who wish to get an H-2B meanwhile need to get a job offer from an American employer that can meet the above criteria.

Applicants need to prove that they will return to their country after the temporary employment.

After the first limited period is complete, the employee can extend their employment for up to 3 years if the employer can prove that the employee is still needed.

Protection from exploitation

With concerns for exploitation and unfair working conditions, the US DHS and Department of Labor announced the creation of a new White House-convened Worker Protection Taskforce.

“We also will bolster worker protections to safeguard the integrity of the program from unscrupulous employers who would seek to exploit the workers by paying substandard wages and maintaining unsafe work conditions,” said Secretary of Homeland Security Alejandro MAyorkas in a statement.

For advice on how to take advantage of this raising of the cap and to find alternate ways to work in the United States, reach out to a trusted immigration lawyer.

Categories
Updates

H-2B visa – A Path to Employment in post-Pandemic USA

Share this:

A significant number of U.S. employers are experiencing a shortage of employees as a result of the “Great Resignation” brought about by the pandemic.

With this reality U.S. businesses find themselves in need of employees who either left or were let go during the height of the coronavirus outbreak.

The United States Citizenship and Immigration Services (USCIS) allows only 66,000 visas for each fiscal year. But recently, more visa numbers are being added to this temporary work program. USCIS announced in May 2022 that 35,000 additional H-2B visas were made available for the second half of the fiscal year 2022.

The H-2B visa could well be any immigrant’s path to employment in the United States, albeit only temporarily.

What is the H-2B?

The H-2B visa is also known as the temporary nonagricultural worker visa.

These are given to non-Americans who would like to work for companies that would otherwise suffer “impending irreparable harm” if they did not employ non-citizens.

Here are the conditions that need to be met for granting the visa:

  1. The employment needs to be for a limited period
  2. The limited period must be less than a year
  3. The employers must prove that there are not enough American workers to do the temporary work
  4. The employment of the non-Americans must not affect the wages for American workers posted in similar jobs

Those who wish to get an H-2B meanwhile need to get a job offer from an American employer that can meet the above criteria.

Applicants need to prove that they will return to their country after the temporary employment.

After the first limited period is complete, the employee can extend their employment for up to 3 years if the employer can prove that the employee is still needed.

The problem and the opportunity

The problem is that within days of the USCIS’s announcement, the cap for applications was already reached.

But, this is not the end for H-2B and other paths for employment.

The 35,000 cap was announced after the US Bureau of Labor and Statistics reported 11.4 million job openings in April.

Months later, employers are still looking for employees, and they may well have their sights beyond America alone.

For tailored advice for those interested in the H-2B and other topics on migration, do not hesitate to reach out to a legal expert.

Categories
Updates

2020 U.S. Immigration Outlook for Filipino Immigrants

Share this:

2020 is a Presidential election year. Whether the United States will have a new or a re-elected President, immigrants and their families will be facing major changes in immigration policies. Let’s examine and determine the prospects of 8 major immigration policy changes that may affect our Filipino immigrants.

The Filipino World War II Veterans Parole Program (FWVP)

The FWVP program was created in June 2016 in recognition of the extraordinary contributions and sacrifices of Filipino veterans during WWII. This program allowed their family members to join the veterans or their widows in the U.S. while their visa petition is waiting for visa availability. After 3 years, several hundreds of family members were allowed in on parole under the FWVP program. As part of the administration policy to eliminate parole programs, the USCIS announced in August 2019 that it will terminate the FWVP. Advocacy groups like the Asian American Advancing Justice, FilVetRep, and the Bayanihan Equity Center, among others, have been working hard to preserve the program. This 2020, unless the administration changes its mind about terminating the program, FWVP program will end after USCIS issuance of its final rules.

Increased USCIS Fees

In November 2019, USCIS announced that it will increase fees on petitions and applications. Among the many applications that are going to be affected are (1) Adjustment of Status application, an increase from $1,225 to $2,195; (2) DACA fees will increase from $495 to $765, an overall increase of 55 percent; (3) Naturalization application will increase by 83 percent, raising the fee from $640 to $1,170. Aside from the increase in fees, USCIS is eliminating fee waivers for naturalization, adjustment of status, green card replacements and renewal and employment authorization. The increase will take effect this 2020 and only after USCIS releases its final regulations.

Backlog in Family Petitions

As of November 2019, there are 291,392 approved visa petitions on behalf of Filipino nationals filed by their US citizens or green card holder relatives, awaiting visa availability with the National Visa Center. The backlog is still severe and there is still lengthy wait for visa availability in certain preference petitions. For Filipinos with petitions under the F3 and F4 visa category, the waiting period is more or less 21 years and for those whose petitions are F1 or F2B the waiting period is approximately 11 years. There are bills (RELIEF Act, S.2603 and H.R. 5327) pending before the 116th Congress which if passed will increase visa numbers and eliminate backlogs. Until these bills are passed into law, expect decades of waiting for certain petitions on behalf of Filipino nationals.

H1B Visa

On January 9, 2020, USCIS released its regulations on the registration system for H1B visa petitions. Instead of filing a full petition for a foreign national employee, the U.S. employer must complete a registration process that requires basic information about the H1B employer and the employee being petitioned. USCIS will open registration period from March 1 through March 20, 2020. Only those selected by USCIS lottery system will be able to file H1B petitions to meet the 65,000 cap.

Public Charge

Under the law, a visa applicant will not be allowed to enter the United States if the government believes that they are likely to become public charge or reliant on government assistance. In 2019, the USCIS issued a new definition of public charge rule to include those who receive either cash or non-cash benefits like housing or health care, from the government for more than 12 months during the 3 year period. The implementation of this public charge rule is suspended because of court litigation filed by several States and advocacy groups challenging the legality of the rule. The Supreme Court is expected to rule on this case this 2020. If the public charge rule takes effect, the legal impact will be on low income legal immigrants petitioning their relatives.

Deferred Action on Childhood Arrivals (DACA)

Deferred Action on Childhood Arrivals or DACA program was created in 2012 to grant young immigrants deferred status and employment authorization. In 2017, Trump announced that it was ending DACA. This resulted in several lawsuits filed against the administration challenging the decision to terminate DACA. The case was heard by the Supreme Court in November 2019 and a decision is expected anytime before June 2020. In the meantime, DACA recipients are allowed to renew their DACA status and employment authorization.

REAL ID

Beginning October 1,2020, federal agencies including Department of Homeland Security (DHS) and Transportation Security Administration (TSA) will only accept state issued driver’s licenses that are REAL ID compliant. This means that the state licensing agency must issue REAL IDs to those with valid identification and legal status. Those who are still in unauthorized status may not be issued READ ID compliant driver’s licenses and identification that will allow them to access federal offices or travel domestically through commercial airlines.

H2B Visa

In January 2019, nationals from the Philippines were banned from receiving H2B temporary working visas for one year. As of this writing, there is no update yet from the USCIS if in 2020, the Philippines will be allowed to become beneficiaries of new H2B visas.

These 8 immigration policies are just among the many policies that are anticipated to affect our Filipino immigrant community. The enforcement of immigration law has consistently been the highest priority of the Trump administration resulting in hundreds of thousands of ICE arrest since he took oath as U.S. president. After a decade, we still have not seen a major overhaul and change in immigration law. Hopefully, this 2020 decade, our leaders will finally pass a more humane and sensible immigration reform law; a more compassionate, relevant and rational one that will replace the dysfunctional immigration system we have right now.

(Atty. Lourdes Santos Tancinco, is an immigrant advocate, founder and a principal partner at the Tancinco Law Offices, 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)

Categories
Updates

Overstaying and Human Trafficking Cited As Main Reasons for Rendering Filipinos Ineligible for U.S. Temporary H2 Working Visas

Share this:

Every year since 2008, the U.S. Department of Homeland Security and the Department of State publish a list of countries whose nationals are eligible to receive H2A and H2B visas. Philippines has always been on this list except for 2019. In a surprising announcement through the Federal Register publication on January 18, 2019, the Philippines together with Dominican Republic (H2B only) and Ethiopia were deleted from the list. This means that no Filipinos will be able to receive H2 Visa beginning 2019.

Only Limited Categories of Working Visas Affected

The working visas impacted by this bad news are limited to the H2A and the H2B visas.

H2A visas are working visas issued to perform agricultural labor or agricultural services of a temporary or seasonal nature. The farm labor includes the raising of livestock, any practices including forestry and lumbering incident to or related to farming operations, handling, planting, packaging to market or carrier for marketing.

H2B visas, on the other hand, are those applied for to work in non-agricultural labor. The type of jobs mostly availed by Filipinos who are temporary and seasonal work in the hotel or construction projects.

Both these agricultural and non-agricultural working visas are temporary in nature and the holder of these visas are expected to return to their homeland after the expiration of the visas.

There are other categories of working visas that are not affected by this recent development and these include the H1B professional and specialty occupations, the H3 Trainees and the O1/P1 working visas. Filipino nationals may continue to apply for the latter visa categories.

Overstaying and Human Trafficking

The U.S. Department of Homeland Securities reports that 40% of those issued H2 visas do not return to the Philippines after the expiration of their visas. It was also mentioned that 40% of the quota number for derivatives of “T1” Trafficking Visas are issued to Filipinos. Visas for derivatives of victims of trafficking are identified as T2 or T3 visas.

Human trafficking occurs when traffickers lure individuals with false promises of employment and a better life often taking advantage of the vulnerable unemployed or low income individuals who lack access to social safety nets. Victims of human trafficking are issued T nonimmigrant visas and are allowed to work and remain in the United States. To prohibit the use of the H2B visa as a route for human traffickers to take advantage of their victims, the DHS decided to designate Philippines as a country whose nationals are no longer eligible for the H2B and H2A visas.

Given that overstaying the authorized stay is unlawful, It must be pointed out that overstaying of H2 workers is one major resulting consequence of becoming victims of human trafficking. Most of the victims borrowed huge sums of money to be able to pay their agents or traffickers. These workers are hesitant to return to the homeland because they will be facing financial issues, lawsuits if not harassment from their creditors in the Philippines.

There are 66,000 visas that are issued each fiscal year. For the year 2017, Filipinos availed of 767 of the H2B visas and that is approximately a little more than 1% of the allocated visa. In rendering Filipinos ineligible of the H2B visas, there is not much impact on U.S. employers in general. However, the 1% is still important to Filipino workers and to their employers and that most of those affected are head of their families. If there is a genuine employer and employee relationship, despite the ineligibility of Filipinos, their employers may still seek a reconsideration to qualify Filipino workers as a matter of discretion and on a case by case basis if it is in the U.S. interest for the Filipino worker to receive the H2B visa. A discretionary factor that may be taken into account is the worker’s prior admission as H2B and that the worker complied with the terms of the program.

In regards to the human trafficking issue, this is a more serious concern not just for the United States but also for the Philippine government. With the delisting of the Philippines from the H2B program, it will be an opportune time to review existing regulations and initiate more restrictive measures to protect our Filipino workers.

(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, facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)