Tag: immigrant visa petition

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Disappointments amid Hopes

Disappointments amid Hopes
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Dear TLAW Subscribers,

With much anticipation, we welcomed the June 18, 2024 announcement of President Biden’s Parole in Place (PIP) program that was scheduled to be implemented on August 19, 2024. USCIS began accepting applications on the same day the regulations were released. Although the application forms were available by Friday, August 16, 2024, official filings started on Monday, August 19.

As I dug into the details of the federal register notice, frustration began to set in. After combing through the 94-page document, it became clear that this PIP program was specifically designed to benefit those who entered the U.S. without inspection. Unfortunately, it did not extend to nonimmigrants who overstayed their visas, nor to crewmembers and transit visa holders who are present in the U.S. and married to U.S. citizens.

For many non-immigrant Filipinos in unlawful status (unable to adjust) and married to U.S. citizens, this was disappointing news. As the Philippines is a non-border country, those who entered without visas are the only ones eligible, and this piecemeal measure leaves out many Filipinos who have been waiting for an opportunity to obtain lawful status and adjust to permanent residency. While it’s frustrating, I remain hopeful that future administrations will support broader, more comprehensive immigration reform.

In our August 2024 Newsletter, I’ve addressed a follower’s question regarding delays caused by sputum tests at St. Luke’s Medical Center Extension Clinic in Manila. Additionally, we’re sharing good news about improved naturalization processing and options for seeking prosecutorial discretion. These opportunities remain available for a few more months under the current administration, and while I am optimistic about the outcome of the 2024 Presidential election, it’s wise to explore any options that can help avoid potentially restrictive immigration policies in the future.

Enjoy the rest of your summer, and welcome to the fall season!

Sincerely,
Atty. Lou

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Marry, Divorce & Remarry: Effect on the Conditional Green Card Holder Spouse

Marry, Divorce & Remarry: Effect on the Conditional Green Card Holder Spouse
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Entering into a good faith marital relationship is always with the intention to stay married forever.  But what if there is no “forever”? What will happen when there is separation or divorce?  What are the effects of these circumstances to the petitioned spouse who is a green card holder with only a conditional resident status? 

Let’s take the case of Joseph (not his real name).  In 2015, Joseph entered the United States based on the petition of his U.S. citizen spouse Rita.  They were childhood sweethearts and have known each other since high school.  So when Rita attended their high school reunion, both Joseph and Rita rekindled the old flame and got married in a simple wedding ceremony.  Upon returning to the United States, Rita petitioned Joseph.  After a year of petitioning, Joseph was able to travel to the United States and was issued a 2-year conditional green card with an expiration date of  12/30/2018.  

After being together for only 6 months, Rita and Joseph began to experience marital problems until they decided to go their separate ways. Rita obtained a divorce decree ending their short lived relationship.  

With Joseph’s green card’s validity expiring, he was at a loss on whether he will return to the Philippines (to avoid falling out of status) or file for a waiver.  He decided to return to the Philippines but a few months before his departure, he met Cecilia who is also a U.S. citizen.  Cecilia and Joseph started dating regularly until Cecilia offered to marry and petition Joseph.  Now Joseph is presented with a situation where he has to choose to return to the Philippines or have Cecilia petition him.  Can he be petitioned even if he still has 6 months validity on his original conditional resident card?  Will the USCIS allow him to adjust his status in the U.S. once Cecilia petitions him?

Under the Immigration and Nationality Act (INA) Section 245(d), conditional residents are barred from adjusting unless they take the necessary steps to remove the two year conditions on their status.  This means that a person could not obtain conditional resident status based on marriage to a U.S. citizen, divorce that petitioner spouse, remarry a second U.S. citizen and re-adjust during that 2 year period.  

When a person with conditional resident status fails to file for the Petition to Remove Condition (I-751) prior to expiration of the validity of the two year conditional status, the USCIS usually issues a decision terminating the status of the green card holder.  The next process then is that the petitioned spouse will be facing the Immigration Judge in a court proceeding to have a filed I-751 be reviewed to prove validity of the first marriage. 

This rule had applied for many years until the interpretation of this rule was changed in 2019 by the USCIS based on the case of Matter of Stockwell, 20 I&N Dec 309 (BIA 1991), where a person with condition resident status may adjust based on second marriage without having to go to immigration court.

Therefore, in the case of Joseph, once he gets the USCIS Notice Terminating his resident status, he will be allowed to adjust based on the second marriage.  USCIS interpretation is that conditional status is now terminated as a matter of law on the second anniversary of the noncitizen’s lawful admission for resident status. 

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August 2021 Update on Consular Operations at the U.S. Embassy for Immigrant Visa Applicants

August 2021 Update on Consular Operations at the U.S. Embassy for Immigrant Visa Applicants
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The U.S. Embassy in the Philippines released its August update and reiterated that only limited scheduled appointments are being made as a result of the COVID-19 pandemic. Numerous visa applicants have been waiting for their visa interviews to be scheduled resulting in a severe backlog of cases on all immigrant visa categories.

The U.S. Embassy is using a tiered approach to triage immigrant visa applications, based on the category of immigrant visa in priority order:

  • Tier One: Immediate relative intercountry adoption visas, age-out cases (cases where the applicant will soon no longer qualify due to their age), and certain Special Immigrant Visas (SQ and SI for Afghan and Iraqi nationals working with the U.S. government)
  • Tier Two: Immediate relative visas; fiancé(e) visas; and returning resident visas
  • Tier Three: Family preference immigrant visas and SE Special Immigrant Visas for certain employees of the U.S. government abroad
  • Tier Four: All other immigrant visas, including employment preference and Diversity Visas

There is no specific date given on when the resumption of full visa services or processing of a specific category of visa would occur. If there is an emergency requiring urgent travel, a request for expedite may be made through the U.S. Embassy website.

For assistance on consular processing of visa applications, call Tancinco Law at 1 888 930 0808 or you may visit our website at www.tancinco.com.

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Recent changes to the H1B visa program are still favorable

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The U.S. Citizenship and Immigration Services (USCIS) on November 18, 2016 published changes to the H1B program affecting highly skilled workers, and these changes took effect on January 17, 2017. Most of these changes affect those who already have H1B visas and have pending immigrant visa petitions with no available visas.

“Isabela” entered the United States on an H1B visa. She is an engineer who works on different development projects for her U.S. employer. Prior to sixth year H1B expiration, her U.S. employer was able to file a labor certification application and an immigrant visa petition. She has a priority date of 2015 on her immigrant visa petition and a visa is not yet available for Filipino nationals.

The visa bulletin for the month of February 2017 indicates that the visa priority date under the Philippines is 2011 and filing date priority date is 2013. Every year, Isabela’s employer files for a one-year extension of her H1B visa.

She heard about the changes in H1B program that took effect on January 17, 2017. Can she benefit from these changes? If she decides to leave her present employer, will she be able to use the prior approved immigrant visa if this already withdrawn by the employer? What options does she have?

No automatic revocation
In several cases where the employee decides to change employers, the first petitioning employer would take the adverse step of withdrawing the approved petition filed on behalf of an H1B visa holder. And in unfortunate cases, because of the lengthy wait for a priority date to become current, there are times where the petitioner’s business closes for valid reasons resulting in revocation of the immigrant visa petition.

With the recent amendment to the regulations, the USCIS will no longer treat an immigrant visa petition as automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business. This change applies to those whose petitions have been approved for 180 days or more. Hence, for some employers who may have malevolent plans of getting back at their employees for moving to another employer, there will no longer be an automatic revocation.

The USCIS set conditions for the non-automatic revocation to apply. The rule clearly states that as long as the approval has not been revoked for fraud, material misrepresentation, invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including (1) retention of priority dates; (2) job portability under INA §204(j) and (3) extensions of status under AC21 §§ 104(c) and 106(a) and (b).

Three-year extension after sixth year
Considering that immigrant visas are not readily available because of numerical limitations imposed by law, the H1B employee may request for a three-year extension instead of a the one-year increment. The extension request must show proof that the immigrant visa classification is over- subscribed, which is always the case for employment-based petitions (EB3) for nationals of Philippines. However, if the priority date is at least one-year current, the extension will only be for one year.

Besides the above changes in the highly skilled H1B visa program and the employment- based petitions, there are more changes that would benefit H1B visa holders. For Isabela and those similarly situated, the changes above are significantly critical especially to Filipinos who have to bear a lengthy wait before immigrant visas are made available.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)