Tag: Immigration and Nationality Act

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Global Pinoy

Immigration: Entrepreneur parole program at risk of being axed

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The U.S. Department of Homeland Security released its official rule on July 11, 2017 seeking to delay the implementation of the International Entrepreneur Rule or the entrepreneur’s parole program. With the publication of this rule, the effective date of implementation is moved from July 17, 2017 to March 14, 2018.

Entrepreneur Parole Program

At the beginning of this year, the DHS published the International Entrepreneur Final Rule (aka the entrepreneur parole program) with an effectivity date of July 17, 2017. Many startup companies have been looking forward to the implementation of this program as it will attract talented foreign entrepreneurs who are well positioned to advance U.S. businesses.

Most of those who stand to benefit from this program are foreign entrepreneurs who can prove that their knowledge, skills or experience would substantially assist a U.S. entity in conducting and growing its business in the United States.

Parole Authority

The current immigration law allows the DHS to exercise its parole authority under section 212(d)(5) of the Immigration and Nationality Act if the presence of the paroled non-U.S. citizen would provide a significant public benefit to the United States.

Under the entrepreneur parole program, eligible applicants may be granted a stay of up to 30 months, with the possibility to extend it for a period of up to 30 additional months. Those targeted to receive parole are entrepreneurs who shall work with the start up businesses.

Delaying Its Implementation

The rule that was just recently released reveals that the DHS decided to delay the effective date of the entrepreneur parole program to further consider it in light of the Executive Order on Border Security and Immigration Enforcement Improvements (EO13767).

Under this executive order, the DHS Secretary is mandated to take appropriate action to ensure that the parole authority is exercised on a case-to-case basis in accordance with the plain language of the law and that it so demonstrates urgent humanitarian reasons or significant public benefit. It is in this light that the DHS delayed its implementation in order to re-examine the program based on EO 13767.

The rule on entrepreneurs parole program was first published on August 31, 2016 by the DHS and the final rule was published on January 17, 2017. The policy was not finalized without considering comments from the public about the benefit it will bring if implemented.

Approximately 3,000 entrepreneurs were expected to apply for this program. Most of those who are planning to apply are in the tech industry as well as those who are planning to develop new business ventures that will spur economic growth and job creation.

It is sad that the present administration’s perspective is just the opposite. While other nations are inviting foreign entrepreneurs, the United States will be turning them away by delaying implementation of the program (and possibly terminating it altogether).

Many billion-dollar startup companies including Google, Uber and SpaceX were founded by immigrant entrepreneurs. They now hire thousands of U.S. citizens. Obviously, strengthening startup companies, job creation and innovation are a significant public benefit and this entrepreneur parole program should not have been stalled.

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

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Updates

Revisiting the “Parole in Place” Policy for Children of WWII Veterans

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When U.S. Citizenship and Immigration Services officials visited the Philippine Consulate in San Francisco in July 2015 for a briefing on the Filipino World War II Veteran Policy, the issue that was of serious concern is about the eligibility of those who are in the United States in unlawful status. It was emphasized that the the FWVP parole is only for those outside the United States. Those who are in the United States must leave the country to get the parole but risk being barred for 3-10 years.

Those who are in the United States in unlawful status may still consider applying for a parole in place under the November 15, 2013 USCIS policy memorandum. However, parole in place has limited applicability.

Parole in Place

The U.S. Citizenship and Immigration Services released a Policy Memorandum titled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S.Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act§ 212(a)(6)(A)(i)”. Pursuant to this Memorandum the children, parents and spouses of active duty members of the US Armed Forces as well as the veterans of the US Armed Forces are entitled to a “parole” status.

Parole status means that those eligible will be considered granted temporary relief from removal and that they will be provided with employment authorization document. The new policy also shall allow immediate relative who are eligible for this parole in place status to adjust their status if they have an approved petition visa petition from their US citizen immediate relative. Parole status does not erase any period of prior unlawful presence.

Usually “parole” status is granted to those who are entering the United States but have no valid visas. The U.S. Citizenship and Immigration Services has the authority to grant parole based on humanitarian or emergency circumstances of the applicant for parole. In this new policy memorandum, the grant of parole status is extended to those who are already in the United States in unlawful status but who have entered the United States without inspection or admission. Those who have entered with a valid visa and later on had the visa expired are not eligible for the parole in place.

Considering that the “parole in place” relief has limited applicability to spouses, children and parents of members and veterans of the military service, only children of war veterans who entered without inspection are entitled to parole. Most Filipinos who enter the United States have in their possession valid nonimmigrant visas. At the time of their entry, they are inspected and admitted. Since they were inspected, even if there are those who failed to maintain lawful status, they still will not be eligible for the parole in place.

The case will be different for children of veterans who crossed the Canadian or the Mexican border. When someone crosses the border without the appropriate visa, these are considered to have entered without admission or inspection (known as “EWIs”). If such is the case, then the “parole in place” may be applied with the U.S. Citizenship and Immigration Services.

Yet. those who are not eligible for parole in place may explore the option of adjustment of status under Section 245(i) since most of the veterans petition for their children were filed in before 2001.

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

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USCIS, magsasakatuparan ng Programang Parole para sa mga Beteranong Pilipino ng Ikalawang Digmaang Pandaigdig

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WASHINGTON — Simula Hunyo 8, 2016, ang U.S. Citizenship and Immigration Services (USCIS) ay papayagan ang ilang benepisyaryo ng aprobadong family-based immigrant visa petitions na magkaroon ng pagkakataong mapagkalooban ng parole base sa kani-kanilang kaso upang sa gayon ay makarating sa Amerika habang hinihintay ang kanilang immigrant visa na magagamit sa tamang panahon.

Ang mga detalyeng patakaran sa nasabing parole ay matatagpuan sa ulat ng White House, na nailathala nuong Hulyo 2015. Mayroong tinatayang bilang na 2,000 hanggang 6,000 na beteranong Filipino-American na nakipaglaban sa Ikalawang Digmaang Pandaigdig ang kasalukuyang naninirahan sa Amerika ngayon. Bukod pa sa mga ilang bagay, ang patakarang ito ay maaari din magbigay sa karapat-dapat na indibidwal na sumuporta at kumalinga sa mga nakatatandang beteranong U.S. citizens o permanenteng residente na miyembro ng kanilang pamilya.

“Ang Programang Parole para sa mga Beteranong Pilipino ng Ikalawang Digmaang Pandaigdig ay nagbigay dangal sa mga libo-libong Pilipino na buong loob at tapang na nakipaglaban para sa bansang Amerika sa panahon ng ikalawang digmaang pandaigdig,” ayon kay USCIS Direktor Leon Rodriguez. “Bilang pagkilala sa mga kontribusyon at sakripisyong ginawa ng mga kinikilalang beterano, ang patakarang ito ay nagbibigay daan sa mga miyembro ng pamilya ng naturang Filipino-American na naghihintay sa kanilang immigrant visa upang makapunta sa Amerika at muling makapiling ang bawat isa. Sa mga nakararami, ito ay magbibigay daan rin upang makapagbigay ng suporta at pangangalaga sa mga nakatatandang beterano o nang kanilang nabubuhay na asawa.

Maliban sa mga immediate relatives ng mga U.S. citizens, ang numero ng ibang family-based immigrant visa na magagamit ayon sa bansang pinagmulan sa anumang naibigay na taon ay limitado ayon sa batas. Ang mga resulta ng limitasyong ito ay magbibigay ng mahabang panahong paghihintay sa mga miyembro ng pamilya na makapiling ang mga nagpitisyong U.S. citizens o permanenteng residenteng kapamilya na nasa Amerika at upang maging ganap na permanenteng residente rin sila. Sa mga Filipino-American, ang paghahantay ay maaaring umabot hanggang sa 20 taon.

Sa ilalim ng patakaran, ang ilang miyembro ng pamilya ng beteranong Pilipino ng Ikalawang Digmaang Pandaigdig ay maaaring mapagkalooban ng parole upang makapunta sa Amerika bago maging available o magamit ang kanilang visa.Sa mga limitadong kaso, ang mga kuwalipikadong kamag-anak ay maaring makahanap ng parole para sa kanilang mga sarili kapag ang kanilang kamag-anak na beteranong Pilipino ng Ikalawang Digmaang Pandaigdig at ang kanyang asawa ay pareho nang namatay.

Sa ilalim ng Programang Parole sa mga Beteranong Pilipino ng Ikalawang Digmaang Pandaigdig, ang USCIS ay susuriin ang bawat kaso upang malaman kung ang pagpapahintulot ng parole ay sadyang angkop.Ang bawat indibidwal na dumating sa U.S. Port of Entry ay susuriin ng U.S. Custom and Border Protection para malaman kung pwedeng mabigyan ng parole ang nasabing indibidwal.

Ang legal na kapangyarihan sa patakaran ng parole ay nanggaling sa Immigration and Nationality Act, na nagpapahintulot sa Sekretarya ng Homeland Security na bigyan ng parole sa Amerika ang mga kwalipikadong indibidwal base sa kani-kanilang kaso, para sa madaliang makataong dahilan, o kaya naman ay sa makabuluhang pampublikong benepisyo.

Ang karagdagang inpormasyon tungkol sa Programang Parole sa mga Beteranong Pilipino ng Ikalawang Digmaang Pandaigdig at ang mga pamamatnubay para sa mga naayong gawin, proseso ng aplikasyon at kung saan maaring isumite ang aplikasyon ay matatagpuan sa binagong Form I-131 instructions at ng Federal Register notice na nailathala kahapon. Hindi po kami tatanggap ng aplikasyon sa ilalim ng patakaran bago mag Hunyo 8, 2016. Ang USCIS ay matinding hinihikayat ang mga kwalipikado at interesadong indibidwal sa paghiling ng parole sa ilalim ng FWVP Program na isakatuparan sa loob ng 5 taon mula Hunyo 8, 2016.

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Global Pinoy

Widows can get visas despite death of petitioners

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THE GENERAL rule that the “petition dies with the petitioner” is subject to certain exceptions.

One way to avoid the automatic revocation is to file a humanitarian revalidation. The other is the conversion of the spouse petition to a widow petition despite the death of the US citizen spouse.

What happens in cases where the surviving spouse remarries after the death of the petitioner?

Michelle married Douglas, a US citizen in 2003. Douglas filed a spouse petition in 2004 but unfortunately died before his petition was approved.

Michelle was not able to file a widow’s self-petition because back in 2004, the marriage should have been in existence for two years before a widow petition is allowed.

In 2007, Michelle married her second husband Noel but this marriage ended in a divorce. In 2010, Michelle filed a widow’s self-petition because immigration law changed by then, now allowing marriages of less than two years to file for self-petition.

This widow’s petition was denied because Michelle married her second husband Noel after the death of Douglas. Is this second-marriage bar an absolute rule for widow petitions?

If Michelle did not marry the second time, will she be able to get the immigrant visa based on her first marriage to Douglas?

Widow petitions

Certain widows and widowers may be able to obtain permanent residence after their US citizen spouse passes away. The following requirements must be met:

  • Self-petitioner was married to a US citizen;
  • The deceased spouse was a US citizen at the time of his or her death;
  • The spouses were not legally separated at the time of the death;
  • They file a US Citizenship and Immigration Services (USCIS) form I-360 within two years of the death; and
  • They are not inadmissible.

A 2009 law eliminated the prior requirement that the couple should have been married for at least two years.

Widows or widowers whose US citizen spouse died before the new law went into effect on Oct. 28, 2009, had two years from that date to seek relief.

The US Immigration law provision on self-petitioning widow or widower clearly provides a bar to receiving immigrant visa if there was a remarriage after the death of the original US citizen spouse.

Effect of remarriages

This is the case of Michelle who can no longer avail of a petition filed on behalf of her first husband.

But if Michelle was already residing in the United States at the time of the death of her first husband, the case will be different.

There is a very recent exception for widows who have remarried and are currently residing in the United States. The USCIS released in November 2015 a policy memorandum where the widow who remarried may still avail of the first petition by the US citizen spouse under Section 204(l) of the Immigration and Nationality Act.

The main requirement is that the beneficiary must have been residing in the United States at the time of the petitioner’s death and continuing to be residing in the United States.

The other requirement is a substitute sponsor who can file an affidavit of support on her behalf.