Tag: President Donald Trump

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The New Public Charge Rule: What Changes on September 18, 2026 – And Why It Matters

The New Public Charge Rule - What Changes on September 18, 2026 - And Why It Matters
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On July 16, 2026, the Department of Homeland Security finalized a rule rescinding the Biden administration’s 2022 public charge regulation. The change restores “Congressional intent that aliens in the United States be self-reliant.” For the roughly one million people who file Form I-485 each year to adjust status to lawful permanent residence, the change is significant— it reshapes one of the most consequential, and least predictable, tests in the green card process. Here’s what’s actually changing, who is likely to be affected by it, and why we anticipate that that this new public charge rule opens the door to inconsistent and potentially arbitrary decision-making.

What Is “Public Charge”?

Section 212(a)(4) of the Immigration and Nationality Act makes a person inadmissible — and therefore ineligible for a green card or visa — if they are deemed “likely at any time to become a public charge.” An application for immigrant visa through adjustment of status or consular processing may be denied if there is a finding that the applicant is likely to become a public charge.  But what does public charge really mean? The term itself is not defined in the statute. Through USCIS regulations and case precedents, it has been defined, redefined, and litigated over for more than a century, most dramatically during the last decade: a narrow Clinton-era definition, a sharply expanded 2019 Trump-era rule (blocked in courts and later withdrawn), and then the 2022 Biden rule that restored the narrower, pre-2019 approach. The 2026 Trump rule now rescinds that 2022 framework — but unlike its predecessors, it doesn’t replace it with a new detailed definition. It simply removes the guardrails.

The 2022 Rule: A Narrow, Defined Test

To understand the change, let’s revisit the Biden’s 2022 Rule which is rescinded. Under the 2022 rule, “public charge” meant a very specific thing: someone likely to become primarily dependent on the government for subsistence. That dependence could only be shown two ways:

  • Receipt of public cash assistance for income maintenance — programs like SSI or TANF, and
  • Long-term institutionalization at government expense.

Everything else was off the table. Medicaid, SNAP (food stamps), housing assistance, and other non-cash or supplemental benefits could not be counted against the visa applicant.

Benefits received by other household members didn’t count against the applicant either. The rule also explicitly declined to designate any single factor as “heavily weighted,” and it built in defined exemptions and procedural clarity — applicants and attorneys knew, with reasonable confidence, what would and would not be scrutinized.

The 2026 Rule: Discretion Without a Defined Standard

The new rule strips out the 2022 framework in its entirety — the definition, the structured list of considered benefits, and the codified exemptions and waivers. In their place, USCIS is directed to conduct a “totality of the circumstances” review using the statutory factors already listed in the INA: age, health, family status, financial resources, and education/skills. Key changes:

No more “primarily dependent” standard. Officers are no longer bound to a specific dependency threshold; they can weigh any factor they consider relevant to self-sufficiency.

Any means-tested benefit is fair game. Rather than limiting review to cash assistance and institutionalization, officers may now consider receipt of any means-tested public benefit — including non-cash programs like Medicaid or SNAP — received on or after the rule’s effective date.

No replacement definition. DHS isn’t issuing a new detailed rule to take the 2022 rule’s place. Adjudicators will rely on the bare statutory language, past precedent decisions, and “policy guidance” the agency has not yet released.

A revised Form I-485. USCIS will publish a new version of the form; older versions submitted or postmarked on or after September 18, 2026, will be rejected outright.

Tougher bond terms. Any public charge bond posted on or after the effective date will be considered breached if the bonded individual receives any means-tested benefit before death, permanent departure, or naturalization — or is otherwise found noncompliant with bond conditions.

Affidavit of Support unchanged. Form I-864 remains required for most family-based and some employment-based cases, and will continue to factor into the totality-of-circumstances review.

Statutory exemptions remain. Refugees, asylees, Special Immigrant Juveniles, and T/U nonimmigrant and VAWA beneficiaries, among others, are still statutorily exempt from public charge review.

Who Is Likely to Be Affected

The people most exposed under the new framework are those the 2022 rule was specifically designed to protect:

Lower- and middle-income applicants adjusting status through family sponsorship, whose households may have used Medicaid, SNAP, or housing assistance at some point — benefits that were previously irrelevant to their case and now may not be.

Applicants with elderly, disabled, or chronically ill family members, since health and prior institutional care can again be weighed more heavily.

Mixed-status and mixed-benefit households, where a US citizen child’s use of Medicaid or SNAP could indirectly color an officer’s view of the household’s overall financial self-sufficiency, even though the applicant themselves isn’t the benefit recipient.

Employment-based applicants in lower-wage occupations or with large families, where income-to-household-size ratios may be scrutinized more subjectively.

Anyone who used benefits in the gap period before new guidance is issued — since DHS has not clarified how reliance on the 2022 rule’s protections between now and September 18 will be treated going forward.

Steps to Consider Now

1. File before September 18, 2026, if you’re eligible and ready. If your case is otherwise complete, filing under the current 2022 framework may be advantageous, since the new discretionary standard won’t apply to applications filed before the effective date.

2. Use the correct Form I-485 version. Once USCIS publishes the revised form, older versions submitted on or after the effective date will be rejected outright — confirm you’re using the current version before filing.

3. Review your household’s benefit history with your attorney. If anyone in your household — including the applicant — has received means-tested benefits, discuss now how that history might be viewed under the new standard, and whether documentation of eligibility, need, or duration should be prepared in advance.

4. Prepare a well documented Affidavit of Support. Since Form I-864 remains a required and heavily weighed factor, ensure sponsors meet income thresholds and have documentation ready, since financial evidence will matter even more under a broader discretionary review.

5. Don’t disenroll from benefits your household is legally exempt from or entitled to without professional advice first. Fear-driven withdrawal from benefits — especially for exempt categories like US citizen children — can create financial hardship without necessarily improving your case; talk to an immigration attorney before making that decision.

6. Watch for USCIS policy guidance. As interim guidance is released ahead of September 18, revisit your case strategy — the practical scope of “totality of the circumstances” will become clearer as that guidance is published.

7. Consult an immigration attorney about timing and evidence strategy specific to your case. Because outcomes under the new rule may vary based on individual officer discretion, a case-specific risk assessment is more valuable now than ever.

More Scrutiny on Green Card Applications

The new rule means broad USCIS officer discretion with no clear replacement standard. It is anticipated that there will be closer scrutiny of benefits use, more requests for evidence and less certainty about how any two cases-even similar ones-will be decided. If ready and eligible it is advisable to file adjustment applications before the effectivity date.  However, careful attention should be given to reviewing your case against the May 21, 2026 policy on adjustment of status before filing.

If you have questions about how this ruling affects your family’s specific situation, please contact our office to schedule a consultation. We may be reached at 1 415 397 0808, law@tancinco.com or through our website: www.tancinco.com.

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Urgent Update: New Presidential Proclamation Impacts H-1B Nonimmigrant Workers

Urgent Update New Presidential Proclamation Impacts H-1B Nonimmigrant Workers
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As of September 19, 2025, a new Presidential Proclamation has introduced significant changes to the H-1B visa program. This action stems from a growing concern about the program’s impact on U.S. workers, particularly in the IT and STEM sectors. It’s crucial for all employers, especially those who currently employ or are considering hiring H-1B workers, to understand these new rules.

What’s Changing? 

The most notable change is a new financial requirement for employers. Starting at 12:01 a.m. EDT on September 21, 2025, employers must pay a $100,000 fee for H-1B petitions for workers who are currently outside the U.S. This is a significant increase from previous costs.

The proclamation is set to last for 12 months, but it’s important to remember that this duration could be extended. The government has also stated that it may waive the restriction if a case is considered to be in the “national interest” and poses no threat to U.S. security.

What Does This Mean for You? 

The new fee will impact your business’s planning and strategy, especially if you rely on the H-1B program for talent.

  • Higher Costs: You can expect a significant increase in the cost of hiring H-1B workers from abroad. This will directly affect your recruitment budget and overall workforce planning.
  • Recruitment & Timelines: The new requirements may cause delays for pending and future petitions, as government agencies will need time to verify payments and update their procedures. This could affect your ability to onboard new team members from outside the U.S.
  • Proof of Payment: Employers must now retain proof of the $100,000 payment. The Department of State and the Department of Homeland Security (DHS) will verify this payment during the visa adjudication process.

Clarification from USCIS 

Following the proclamation, USCIS issued a policy memorandum to clear up some initial confusion. This guidance provides much-needed reassurance for many employers and employees.

  • Not Retroactive: The new $100,000 fee only applies to petitions filed on or after September 21, 2025.Petitions submitted before this date are not subject to the new fee.
  • Current H-1B Holders are Safe: If you have employees who already have a valid H-1B visa, they are not impacted by this new fee.
  • Travel is Still Permitted: Current H-1B holders can continue to travel internationally and re-enter the U.S. without paying the new fee. This is a crucial clarification, as many feared a travel ban.

What Happens Next? 

The new rules are aimed at prioritizing “high-skilled, high-paid workers” and revising prevailing wage levels. These changes suggest a shift in the government’s approach to the H-1B program. We will continue to monitor the situation for any further rulemaking from the Department of Labor and DHS.

We recommend that all businesses review their immigration strategy immediately and consult with legal counsel to ensure compliance. If you have any questions about how these changes affect your specific case, please don’t hesitate to reach out to us. We are here to help you navigate these complex new regulations.

(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 website www.tancinco.com)

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U.S. Citizens at Risk: An Examination of Trump’s Expanded Denaturalization Priorities

U.S. Citizens at Risk: An Examination of Trump’s Expanded Denaturalization Priorities
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In an effort to advance Trump’s policy objectives on immigration, the Department of Justice issued a memorandum/directive to all government attorneys of the civil division of the department to prioritize certain cases for investigation and appropriate action.

The Department of Justice’s June 11, 2025 memorandum (DOJ Memo) outlined five enforcement priorities, with the most controversial being the last: Denaturalization. The Department of Homeland Security is not the only agency tasked with enforcing immigration law against individuals in the United States who are present in unlawful status; the Department of Justice is now also poised to strip certain U.S. citizens of their citizenship status.

Civil or Criminal Denaturalization

Citizenship through naturalization if obtained illegally may be revoked by the government through the process of denaturalization either through a criminal or civil proceedings. The legal grounds for civil denaturalization may be found in INA Section 340(a) where it states that naturalization may be revoked for having illegally procured citizenship or by concealment of a material fact or by willful misrepresentation.

Criminal revocation of citizenship is found in 18 USC § 1425 for naturalization fraud. Citizenship is revoked after conviction for procuring or attempting to procure the naturalization of anyone contrary to law.

The DOJ Memo refers to prioritizing civil denaturalization and has expanded the criteria for those who are subject to denaturalization. In addition, the government had wide discretion based on the DOJ Memo to decide on who to denaturalize.

Concealment of a Material Fact (Example Cases)

To become a naturalized citizen, an applicant generally needs to have been a lawful permanent resident for at least three or five years before applying. However, if an individual obtained permanent residency through fraudulent misrepresentation and later naturalized, this could be grounds for denaturalization. In simpler terms, if someone lied to get their green card and then used that fraudulent green card to become a citizen, their citizenship could be revoked through denaturalization.

An example to illustrate is the case of “John.”  In 1991, John was petitioned by his green card holder parent as a single adult son and was granted an immigrant visa.  Unknown to his petitioner, John was already married to his long time girlfriend in 1990.  He concealed this material fact to the U.S. consular officer during his interview and at the time of entry.  After five years he applied and was granted U.S. citizenship. He did not reveal about his prior marriage but instead re-married his spouse after getting his citizenship. If through government investigation, the prior marriage of John is discovered, he will be subjected to naturalization under INA Section 340.

Sometimes concealment of certain matters may not be material in naturalization proceedings but may have adverse effects as well.  For example, being arrested for a misdemeanor which typically will not affect the grant of lawful permanent resident status but an immigration examiner may rule this as not having met the good moral character eligibility criteria. Under the DOJ Memo, if the naturalized citizen is investigated by the DOJ attorney and using the latter’s wide discretion, a denaturalization proceeding may be initiated.

Expanded Criteria for Denaturalization

There are 10 categories of priorities for denaturalization enumerated in the DOJ Memo. We will examine a few of them:

Potentially Dangerous. The DOJ memo mentions cases against individuals who pose a “potential” danger to national security as possible subject to denaturalization.  There is no definition of who is the potential danger to national security.  This may be the case of a naturalized U.S. citizen who may have expressed a political opinion not intended to be a danger to national security but interpreted by the DOJ attorney as “potentially” dangerous to national security, thus, possibly a denaturalization may be initiated in this case.

Fraud Against Private Individuals or Entities.  These are cases against individuals who committed fraud against private individuals, funds or corporations. What type of fraud does this cover? What is the extent of the fraud against a private individual or entity that may be subject of a denaturalization.  Usually denaturalization focuses on fraud committed on the naturalization application or in obtaining lawful permanent resident.   However, this represents an unchartered territory where fraud against an individual or a non immigration related fraud could be a subject of a denaturalization investigation.

Financial Fraud. Cases against individuals who engaged in various forms of financial fraud against the United States (including Paycheck Protection Program (“PPP”) loan fraud, and Medicaid/Medicare fraud may be subjected to denaturalization investigation.. Naturalized U.S. citizens who fraudulently applied for the PPP during the pandemic may fall under this category.  Medicaid or medicare fraud is a criminal offense and is now specifically mentioned as triggering a denaturalization proceedings.

Pending Criminal Charges. Cases referred by the U.S. Attorney’s Office or in connection with “pending” criminal charges, if those charges do not fit within one of the other priorities is another new criterion on denaturalization.  Under this category, even if there is no criminal conviction and it so happens that the naturalized U.S. citizen has a  “pending’ criminal charge a denaturalization case may be initiated.  But what type of pending criminal charge falls under this category is also not clear.

Catch All Provision.  Perhaps the most unsettling criterion for denaturalization is what many refer to as the “catch-all” provision. This broad language, as outlined in the DOJ Memo, states that the Civil Division can pursue “any other cases… that the Division determines to be ‘sufficiently important to pursue.'” The lack of clear parameters for what constitutes “sufficiently important” grants the government significant discretion. Essentially, this provision could allow the government to initiate denaturalization proceedings against any U.S. citizen it deems “important” enough to target. Such vague criteria raise concerns about potential interpretations that could shift with different administrations’ policies.

Denaturalization Process

Once an immigrant is identified for investigation by the government  for purposes of denaturalization, the case will be filed with the federal district court having jurisdiction over the residence of the immigrant being stripped of citizenship.  When the case is filed with the court the naturalized U.S. citizen may present evidence to avoid denaturalization. Note that this is a judicial process and only a federal judge may strip one of U.S. citizenship.  If a citizen is denaturalized, the individual will revert back to his/her prior immigration status and most likely be put in removal proceedings. Whether or not he will be deported depends on available relief or waivers.

What to Do

Given that denaturalization is now a priority for action as directed by the Department of Justice, it is crucial for naturalized citizens to understand their potential vulnerability. If you believe you might fall into any of the categories outlined in recent DOJ Memo, we strongly advise the following:

First, revisit and re-examine your past naturalization application and all supporting documentation. Look for any discrepancies, omissions, or misrepresentations, however unintentional, that could be misconstrued under heightened scrutiny.

Second, seek immediate and competent legal counsel. This is a default and necessary step to protect your rights. An experienced immigration attorney can assess your specific case, come up with a risk assessment and advise you on your next best course of action.

Finally, should denaturalization proceedings be initiated, prepare and raise defenses in federal court. In the unfortunate event that denaturalization is ordered, explore all applicable waivers or applicable immigration relief to avoid potential removal from the United States. Taking proactive steps now is essential to protecting your citizenship.

If you believe that you fall into any of the categories of those who might be affected by this denaturalization effort of USCIS, it will be best to revisit and re-examine your naturalization application, have your case assessed by competent legal counsel. And, if there is a possibility of denaturalization, prepare to defend yourself in the federal court and, in the worst case scenario, explore applicable waivers or defenses to avoid removal.

(Atty. Lourdes 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., law firm established since 1992.  She is also a producer/host of Pusong Pinoy sa Amerika, an immigration law informational show aired on GMA Pinoy TV. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or text/call 1-415-397-0808)

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Let’s Stay Safe and Strong Together

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My dearest TLAW community and friends: 

In the past few weeks, a shadow of fear has fallen over many of our homes. We’ve seen and heard the news – a sharp increase in ICE arrests, not just at the border, but in our cities, our neighborhoods, and even in places that were once considered safe.

This isn’t just about numbers; it’s about our families, our friends, our neighbors. Hardworking people, with deep roots in this country, are being separated from their loved ones. This is happening for the following reasons. First, arrests at the southern border have significantly decreased. To meet demanding new quotas – reports say as many as 3,000 arrests a day – ICE is now looking for arrests domestically, within the United States.

This has led to controversial and new ICE arrest tactics. We’re seeing ICE agents making arrests at courthouses, detaining people moments after their immigration cases are dismissed. They are targeting those who are diligently following the rules and showing up for their required check-ins. ICE raids are happening at construction sites, in restaurants, and on farms – places where our community works hard to build a better life.

The fear and uncertainty you are feeling are real, and they are valid. In these moments of crisis, the most important thing we can do is stand together and be prepared.

Your safety is the priority. We must be proactive. The constitutional right to peacefully assemble and make our voices heard is a cornerstone of this nation. But I urge you to please exercise this right with great care. Violence will only endanger you and our entire community. Do not give anyone an excuse to target you.

Before you consider any action, I want you to do a personal risk assessment. Understand the potential consequences for you and your family. And most importantly, know your rights.

If you are approached by ICE, remember:

  • You have the right to remain silent. You do not have to answer questions about your immigration status or where you were born.
  • Do not open your door unless they can show you a judicial warrant signed by a judge. Ask them to slip it under the door or hold it up to a window. An ICE administrative warrant is not the same as a judicial warrant.
  • You have the right to speak with a lawyer. Do not sign any documents without legal advice.
  • If you are detained, you have the right to contact your nearest consulate. They are there to help you.

It is critical that you do not make any major decisions without first consulting with an experienced and trusted immigration attorney. We can help you understand your options and what is best for your specific situation. If the worst happens and a loved one is taken, having a lawyer and knowing their “A” number will be essential to locate them and explore any legal options for their release or return.

Beyond our immediate actions, we must also look at the bigger picture. As a community, and for those of us who are citizens, we must call on our elected representatives in Congress. We need to demand more than just enforcement. We need comprehensive, humane immigration reform that reflects the values of this nation of immigrants – a system that is just, respects the rule of law, and upholds human dignity.

Let us meet this challenge with wisdom, preparation, and unity. Stay safe, know your rights, and let’s look out for one another. We are a strong and resilient community. We will get through this together.

Sincerely,

Atty. Lou Tancinco

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Featured

Are you a Green Card holder and at risk of being detained at a U.S. airport?

Green Card Holder At Risk Detained US Airport
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Nowadays, a non-U.S. citizen returning from travel outside the United States is not necessarily guaranteed a smooth entry, even with a validly issued visa or lawful permanent resident (LPR) status. Many immigrants—including not just undocumented individuals but also green card holders—are increasingly fearful of their status. This atmosphere of fear has been fueled by the current administration’s heightened enforcement of immigration laws, along with stricter scrutiny of individuals’ past immigration and criminal histories upon entry into the U.S.

With recent news reports of numerous LPRs being detained at airports, this article aims to provide guidance on whether you might be at risk of possible detention or arrest upon arrival.

Why Are Lawful Permanent Residents Being Detained at Ports of Entry/Airports After Traveling Abroad?

A non-U.S. citizen is granted lawful permanent resident status by the U.S. Citizenship and Immigration Services (USCIS) to allow them to permanently reside and work in the United States. Green cards may be issued through family-based or employment-based petitions, as well as humanitarian visas.

However, holding a green card does not mean that your status is truly “permanent” or that you are automatically guaranteed re-entry into the U.S. Like temporary visas, lawful permanent resident status is a privilege granted by the U.S. government—not an absolute right. If you fail to meet the residency requirements or engage in conduct that violates immigration laws, your green card may be revoked.

Traveling and Returning to the United States

General Rule

As a green card holder, you generally should not fear returning to the U.S. after traveling abroad. However, if you have a case or past actions that fall under grounds for revocation of your green card, you could face detention and secondary inspection by Customs and Border Protection (CBP) officers at the port of entry.

Returning Resident vs. Arriving Alien

In immigration law, understanding certain key terms is essential. When entering the U.S. with a valid visa—whether a green card or a temporary visa—you are expected to be admitted after inspection of your travel documents. If no legal grounds exist to deny your entry, CBP must allow you in. However, if there are deficiencies in your visa or circumstances rendering you inadmissible, you may be classified as an “arriving alien” rather than a “returning resident.”

Generally, green card holders are not considered arriving aliens. However, there are exceptions where an LPR may be classified as an arriving alien, which could put them at risk of inadmissibility and denial of entry.

For example, an LPR may be deemed an arriving alien if CBP suspects that they abandoned their resident status or if they fall under a category subject to removal from the United States. If this occurs, the CBP officer may place the individual in secondary inspection, detain them at the airport, or refer them to Immigration and Customs Enforcement (ICE), depending on the nature of their case.

Categories of Green Card Holders Who May Be Detained or Considered Arriving Aliens

Even before the current administration’s restrictive enforcement of immigration laws, legal provisions already existed for classifying certain green card holders as arriving aliens under Immigration and Nationality Act (INA) Section 101(a)(13)(C). A green card holder may be deemed an arriving alien if they:

  • Have abandoned or relinquished their resident status
  • Have been absent from the U.S. for a continuous period exceeding 180 days
  • Have engaged in illegal activity after departing the U.S.
  • Departed the U.S. while under legal proceedings for removal
  • Have committed an offense that falls under INA Section 1182(a)(2) unless granted relief under INA 1182(h) or 1229b(a)

Criminal grounds of inadmissibility referred to in number 5 category refer to:

  1. Crime involving moral turpitude;
  2. Multiple criminal convictions;
  3. Controlled substance traffickers;
  4. Prostitution and commercialized vice;
  5. Human Trafficker;
  6. Money Laundering

To complicate matters for arriving aliens, there are certain crimes that require the law enforcers to detain non-U.S. citizens because of the Laken Riley Act which was enacted immediately after President Trump took office. Added to the crimes defined under existing law above, the following crimes may render the returning resident into stricter scrutiny:

  1. Burglary;
  2. Theft;
  3. Larceny;
  4. Shoplifting;
  5. Assault of law enforcement officer;
  6. Crime resulting in death or serious bodily injury to another person.

If an LPR falls into any of these categories—including those with prior criminal convictions—CBP may classify them as an arriving alien and detain them at the port of entry. However, similar to other immigrants detained after enforcement actions, LPRs detained at ports of entry still have rights they can exercise.

Before Traveling Abroad or Returning to the United States

The mere passage of time since receiving your green card or the fact that you have previously traveled in and out of the U.S. without incident does not guarantee future entry. Given the stricter enforcement environment, it is crucial to exercise due diligence before traveling.

What You Should Do:

  1. Consult an immigration attorney before traveling if:
    • You have a prior arrest or criminal record (convictions or pending charges)
    • You have a pending case with immigration court or USCIS
    • There is anything in your immigration history that was not disclosed during your green card application and could raise questions upon re-entry
  2. Be mindful of extended absences from the U.S.
    • Staying outside the U.S. for more than six months may have serious consequences. While this alone may not revoke your green card, CBP may view it as evidence of abandonment.
    • If pressured to sign an abandonment of residence form at the airport, know that you are not required to sign it against your will.
  3. Know your rights as a lawful permanent resident.
    • Understanding the legal framework surrounding LPR status will help you navigate interactions with CBP officials and avoid unnecessary complications upon return.

Final Thoughts

Not all green card holders are at risk of being detained at the airport upon re-entry. However, those classified as “arriving aliens” may face heightened scrutiny and potential enforcement actions by CBP. If you are an LPR, remember: “Use it, or lose it.”

(Author Atty. Lourdes Santos “Atty. Lou” 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., law firm established since 1992.  She is also a producer/host of Pusong Pinoy sa Amerika, an immigration law informational show aired on GMA Pinoy TV. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Are You At Risk of Being Stripped of Your U.S. Citizenship?

Are You At Risk of Being Stripped of Your U.S. Citizenship?
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If you are a naturalized U.S. citizen, are you at risk of being stripped of your U.S. Citizenship in a 2nd Trump term?

President Trump’s focus on immigration is on border security, undocumented immigration and enforcement of immigration law including a plan for a mass deportation. So far, there is no “denaturalization policy” that was expressed. It was during his prior administration that he created a Denaturalization Task Force and a Denaturalization Section targeted against U.S. citizens. What are the chances that this effort is going to be revived? And if you are a naturalized U.S. citizen are you at risk of being stripped of your U.S. Citizenship? 

Denaturalization is found in Section 340 of the Immigration and Nationality Act. There are only certain legal basis to denaturalize an individual and this is initiated by the government through the federal district courts. In the past it was seldom utilized except in extreme cases like in denaturalization of former Nazis who lied about their past who illegally procured naturalization. 

Those who are most likely to be affected by the administration’s effort to strip U.S. citizenship from naturalized citizens may be divided mainly into 3 categories. These are immigrants who procured their citizenship illegally because of the presence of:

  1. Prior criminal conviction that was concealed: Those who concealed their criminal convictions on their naturalization applications and their criminal cases are grounds for removal may have their cases referred for naturalization. Note that criminal charges or convictions must have occurred before and during the naturalization process. 
  1. Prior removal cases and assumed identities:  Several  years ago, the U.S. government discovered hundreds of individuals who had prior deportation orders and who used different names in their green card and naturalization applications.  These cases are now being investigated and may be re-opened for denaturalization.
  1. Material fraud and misrepresentation. This refers to those who lied in obtaining their green cards through fraud and misrepresentation.  The lie must have a relation to the eligibility for green card or naturalization to be a basis for denaturalization. 

Once an immigrant is identified for investigation by USCIS for purposes of denaturalization, the matter will be referred to the Department of Justice’s Denaturalization Section under the Office of Immigration Litigation  and the Assistant U.S. Attorney. Thereafter, the case will be filed with the federal district court having jurisdiction over the residence of the immigrant being stripped of citizenship.  When the case is filed with the court the naturalized U.S. citizen may present evidence to avoid denaturalization. Note that this is a judicial process and only a federal judge may strip one of U.S. citizenship. There is a due process involved and a right to a hearing. If a citizen is denaturalized, most probably this individual will be put in removal proceedings. Whether or not he will be deported depends on available relief or waivers.

Naturalized U.S. citizens must now realize that just like in the past Trump administration and now with the present administration. they no longer have a sense of permanence when it comes to their immigration status. If you believe that you fall into any of the categories of those who might be affected by this denaturalization effort of USCIS, it will be best to revisit and re-examine your naturalization application, have your case assessed by competent legal counsel. And, if there is a possibility of denaturalization, prepare yourself to defend yourself in the federal court and, in the worst case scenario, explore applicable waivers or defenses to avoid removal.

(Atty. Lourdes 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., law firm established since 1992.  She is also a producer/host of Pusong Pinoy sa Amerika, an immigration law informational show aired on GMA Pinoy TV. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Updates

Should the Unauthorized Immigrant Leave Voluntarily?

Should the Unauthorized Immigrant Leave Voluntarily?
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San Francisco, CA – With President-elect Trump’s promise of a mass deportation of illegal immigrants, many unauthorized immigrants (including those who have overstayed their visas) are concerned about their future in the United States. While Mexico has 4.1 million unauthorized immigrants, there are approximately 350,000 Filipino immigrants in the U.S. with undocumented status.

Though Trump has pledged to initiate mass deportations on the first day of his term, the details of this policy remain unclear. At present, there are no explicit guidelines on how deportations might be implemented. Based on campaign statements, the following actions are anticipated:

  • Use of emergency and executive authorities to bypass existing laws
  • Reactivation of the 1798 Alien Enemies Act, which served as the legal basis for the detention of people of Japanese, German, and Italian descent during WWII
  • Enlisting local and state police, U.S. military, and the National Guard to enforce immigration laws

According to the American Immigration Council, deporting one million people per year could cost taxpayers an estimated $88 billion annually. Additional resources would be required to increase law enforcement staffing, expand detention facilities, and staff immigration courtrooms, along with the substantial costs of deporting noncitizens via commercial airlines and chartered flights.

During his initial term in 2016, President Trump also discussed mass deportation, yet no more than one million immigrants were deported. Most of those removed were convicted felons or individuals with final orders of removal.

3-10 Year Bar Rule Applies

Choosing to leave the United States voluntarily before a potential mass deportation requires careful consideration of the consequences. The term “voluntary departure” can have different meanings for laypeople and within legal contexts.

In layman’s terms, voluntary departure means leaving the United States independently, such as by taking a flight back to the Philippines. This option is available only if the noncitizen is not currently in removal proceedings. However, there are consequences: even with an approved petition, departing voluntarily can result in a 3-10 year bar on reentry. Specifically, unauthorized immigrants who have been in the U.S. for over six months face a three-year bar, while those who have stayed over one year face a ten-year bar. For families with a mix of U.S. citizens or green card holders and unauthorized immigrants, this could mean separation from family members in the U.S. for three to ten years.

For those in removal proceedings, voluntary departure might allow them to reenter the U.S. later if proceedings were initiated while they were still in status. If they were already out of status, however, a 10-20 year or even a permanent bar may apply depending on the reason for deporation.

In conclusion, voluntary departure has significant immigration consequences, and consulting a licensed legal professional before making such a major decision is essential.

Rights of Unauthorized Immigrants

The U.S. Constitution guarantees due process rights to all residents, meaning that noncitizens may have the opportunity to be heard by an immigration judge before deportation. If detained, unauthorized immigrants may be entitled to a hearing. With a backlog of over three million cases, these hearings may be delayed by months or even years.

Exceptions to the right to a hearing include those who have been in the U.S. for less than two years and are arrested within 100 miles of the border and these group of immigrants may be subject to expedited removal. Most of the 350,000 unauthorized Filipino immigrants have resided in the U.S. for more than two years, and many have lived here for over 20 years.

ICE Raids and Targeted Arrests

With an anticipated increase in interior enforcement, ICE raids are expected to become more frequent during Trump’s administration. Former acting ICE Director Tom Homan noted that raids would not be indiscriminate neighborhood sweeps but rather targeted arrests based on investigative processes.

In a recent  NBC interview, President-elect Trump stated that there is no “price tag” for these deportation efforts, emphasizing that the removal of individuals involved in severe crimes is non-negotiable. According to Pew Research, of the 11 million unauthorized immigrants in the U.S., the majority have no criminal record. However, collateral arrests may still occur for those without criminal convictions who are encountered during ICE raids.

Know Your Options and Rights Before Departing

For Filipino nationals who have resided in the U.S. for extended periods, possess strong family ties, and lack criminal convictions, exploring legal options before deciding to leave is advisable. You may still have a right to a hearing where relief, such as a green card, might be possible through immigration courts.

On the other hand, if the prospect of a mass deportation creates anxiety and sleepless nights, you may choose to depart voluntarily—so long as you understand the legal consequences of your decision.

(Atty. Lourdes 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., law firm established since 1992.  She is also a producer/host of Pusong Pinoy sa Amerika, an immigration law informational show aired on GMA Pinoy TV. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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Updates

Trump’s “No Insurance, No Green Card” Rule Now Revoked by Biden

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Under the Trump Proclamation 9945 announced in October 2019, immigrant visa applicants had to prove they were covered by approved insurance, such as employer-sponsored plans, unsubsidized plans or family members’ plans, or “possess[ed] the financial resources” to pay for any reasonably foreseeable medical costs before they may granted their immigrant visas or green cards. Trump’s belief was that the cost of immigrant health care would be pushed onto American taxpayers and drive hospitals into insolvency.

The American Immigration Lawyers Association filed a lawsuit against the U.S. Department of Homeland Security, the U.S. Department of State and other federal agencies on behalf of a proposed class of affected individuals and the nonprofit Latino Network, claiming that Trump’s rule was unconstitutional and that the administration sidestepped a notice-and-comment period required under administrative law.

On May 14, 2021, President Biden issued a proclamation lifting former President Donald Trump’s Proclamation 9945 and said his administration can expand access to quality affordable health care without barring the entry of non-citizens who seek to immigrate lawfully but lack the means to pay for health plans. Biden revoked the rule saying that Trump’s policy was at odds with an executive order of his own from February aimed at “restoring faith” in the immigration system.

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Updates

International Entrepreneur (IE) Parole Program to Continue under Biden Administration

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In 2016, the Obama Administration created the International Entrepreneur Parole (IEP) Program. It was established with the purpose of granting parole status to an applicant who is an “entrepreneur” of a start-up who takes an active role in the operations and growth of the business. The program was set to begin in July 2017, but the Trump administration pushed the start date to the following year, citing an executive order looking to crack down on parole abuse. The Trump administration then through a proposed rule published on May 29, 2018, suggested eliminating the program, saying the policy didn’t adequately protect U.S. workers and that parole wasn’t an appropriate vehicle to attract or retain international entrepreneurs.

On May 10, 2021, the U.S. Department of Homeland Security announced that the IEP program will no longer be revoked but in fact will continue to implement the program pursuant to existing regulations contained in 8 CFR 212.19.

Under this program the 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.

If an IE Parole 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.

More than 50 percent of start-ups in the United States with a $1 billion valuation were founded by at least one immigrant. This IE Parole program is significantly beneficial to U.S. public interest considering that the United States is a popular destination for start-up founders, but many other countries (including Canada, the United Kingdom, China, Japan, Israel, Germany, Australia, and New Zealand) are competing to entice entrepreneurs to their shores.