Tag: U.S. Department of Homeland Security

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Pathway to Citizenship Gaining Momentum

Pathway to Citizenship Gaining Momentum
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Congress Passes Budget Resolution Paving Way to Legalizing Certain Immigrants

On August 24, 2021 the U.S. House of Representatives passed the Budget Resolution on a 220-212 vote allowing a budget reconciliation bill to move forward in Congress. The budget resolution includes over $100 billion to support legalization programs for Dreamers, recipients of Temporary Protected Status, essential workers, and other eligible immigrants, as well as other reforms to the immigration system.

Both the House and the Senate instructed their respective Committees to draft reconciliation legislation including language that will provide a pathway to citizenship for eligible unauthorized immigrants.

A stand-alone bill to be passed in Congress requires a majority vote of the House of Representative and the usual 60 vote threshold in the Senate. With a politically charged immigration issue on the legalization of millions of undocumented, it may take a while before an immigration bill is passed into law. But a “reconciliation” process allows a simple majority to pass certain types of legislation evading a Senate filibuster. And since the current Senate is split 50-50 and the Vice President, who casts the tie breaking vote is a Democrat, a reconciliation bill could pass without any Republican support.

The immigration provisions on the budget reconciliation bill may not be the comprehensive immigration reform bill that has been anticipated for many years. While the language of the bill is still being drafted, nothing definite is to be expected but it is likely that certain categories of immigrants (basically the Dreamers, recipients of Temporary Protected Status, “essential” workers), may benefit from the immigration provisions of the budget reconciliation bill.

The “Dreamers” are the undocumented immigrants who came to the U.S. in 2019 or earlier, at 17 years or younger and are either in school or have completed the equivalent of a high school diploma. “Essential Workers” include those engaged in industries defined as “essential” by the U.S. Department of Homeland Security. The industries that essential workers support represent, but are not limited to, medical and healthcare, telecommunications, information technology systems, defense, food and agriculture, transportation and logistics, energy, water and wastewater, and law enforcement.

A final vote on the final Budget Reconciliation bill is expected in the coming weeks.

For further information, please contact Tancinco Law at www.tancinco.com, law@tancinco.com or by calling 1 888 930 0808.

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Biden’s Strategy On Promoting Naturalization

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In the past administration, a significant number of non-citizens were apprehensive about filing applications for naturalization because of restrictive immigration policies.  Even naturalized U.S. citizens were threatened with de-naturalization or having their U.S. citizenship taken away from them through a Trump denaturalization program that was then established within the U.S. Citizenship and Immigration Services.

In a 180 degree change of direction the current Biden-Harris Administration is determined to promote naturalization among those eligible to file for naturalization and become U.S. citizens. It has taken steps to eliminate barriers to citizenship and restore faith in our nation’s legal immigration system.

On July 2, 2021, the USCIS released its Interagency Strategy for Promoting Naturalization to promote naturalization through citizenship education and awareness and by building capacity and expanding partnerships with government agencies and community based organizations.

As part of this interagency strategy, a Naturalization Working Group was established by the U.S. Department of Homeland Security (DHS), Education (ED), Health and Human Services (HHS), State (DOS), Labor (DOL), Housing and Urban Development (HUD), Defense (DOD), Justice (DOJ), Veterans Affairs (VA), Agriculture (USDA) and the Social Security Administration (SSA).

Naturalization Working Group goals include:

  • Raising awareness of the importance of citizenship;
  • Promoting civic integration and inclusion;
  • Providing immigrants with opportunities and tools to become fully engaged citizens;
  • Building community capacity to prepare immigrants for citizenship;
  • Eliminating sources of fear and other barriers that prevent individuals from accessing available naturalization services; and
  • Advancing and ensuring equity throughout the citizenship and naturalization processes, including on the basis of race, disability, language access, national origin, gender, gender identity and sexual orientation, and providing support to traditionally underserved communities.

This is a welcome development as a means of empowering the immigrants and restoring faith in the immigration system. While many will be encouraged to apply for naturalization as a result of this program, it will still be prudent for those with long immigration history  to take diligent steps to get their cases assessed for any possible consequences of filing for U.S. citizenship. Examples are those with prior criminal convictions, undisclosed prior marriages, continuous interrupted physical presence among other issues, who must consult with their trusted professional legal counsel before proceeding to file citizenship.

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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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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.

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REAL ID Enforcement extended for another year, or until October 1, 2021

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The Department of Homeland Security (DHS) announced that due to circumstances resulting from the COVID-19 pandemic and the national emergency declaration, their agency is extending the REAL ID enforcement deadline by a year. The new deadline for REAL ID compliance is now October 1, 2021. Below is the DHS rationale for this extension:

“The federal, state and local response to the spread of the Coronavirus here in the United States necessitates a delay in this deadline. Our state and local partners are working tirelessly with the Administration to flatten the curve and, therefore, we want to remove any impediments to response and recovery efforts. States across the country are temporarily closing or restricting access to DMVs. This action will preclude millions of people from applying for and receiving their REAL ID. Extending the deadline will also allow the Department to work with Congress to implement needed changes to expedite the issuance of REAL IDs once the current health crisis concludes.”

This extension means that for purposes of domestic flights in the United States, Transportation Security Administration’s (TSA) and airlines’ agents may still accept the Drivers licenses or identifications that are not REAL-ID compliant until October 1, 2021. And since there is a one year extension, those who are eligible to apply for a REAL ID compliant license must do so without further delay. Those individuals who do not have legal status usually are not granted driver’s licenses or identifications that are not REAL-ID compliant. It will also be prudent to seek ways on how to legalize immigration status if there are available legal options.

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2020 U.S. Immigration Outlook for Filipino Immigrants

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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)

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Closing of USCIS Office in Manila Will Not Adversely Affect U.S. Visa Applicants

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Beginning July 5, 2019, the U.S. Citizenship and Immigration Services (USCIS) field office in Manila will be closed. Visa applicants and those who have pending visa petitions were alarmed by this recent development. It is important to note that the processing and issuance of visas will still continue at the U.S. Embassy in Manila through its visa services unit. USCIS and the U.S. Embassy have distinct responsibilities when it comes to immigration.

The USCIS

The USCIS is an agency within the U.S. Department of Homeland Security (DHS) and administers the country’s naturalization and immigration system. USCIS field offices such as the one in Manila handle immigration petitions such as petitions for immediate relatives (I-130), Application for Travel Document (Carrier Documentation), Abandonment of Lawful Permanent Resident Status (I-407), among others. The USCIS announced that individuals who were previously assisted in its Manila field offices before June 3, 2019 must follow new filing instructions that may be found on their website (www.uscis.gov).

The U.S. Embassy

The U.S. Embassy is under the U.S. Department of State (DOS) has varying responsibilities in immigration law which include non-immigrant visas, immigrant visas and anti-fraud activities related to the administration of visa issuances among others. The U.S. Embassy handles applications and the issuance of visas.

Both immigrant and non-immigrant visa processing with the U.S. Embassy will continue despite the closure of the USCIS office. General information about the U.S. Embassy Manila is available on the embassy’s website (https://ph.usembassy.gov).

(Atty. Lourdes Santos Tancinco, Esq. is an immigrant advocate and a principal partner at the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com , facebook.com/tancincolaw, or through her website tancinco.weareph.com/old)

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Why Is It Taking Too Long for USCIS to Adjudicate a Visa Petition/Application?

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The delay in the processing of visa benefits applications with the U.S. Citizenship and Immigration Services (USCIS) has reached a critical level that’s affecting U.S citizen families and employers filing visas on behalf of their relatives and employees, respectively. Last month, U.S. Congressional Representatives led by Rep. Jesus G. “Chuy” Garcia (D-IL) sent a letter to the USCIS Director Lee Francis Cissna demanding accountability on the current delays in the adjudication of visa petitions and other applications. What is causing the delay and what actions can we take to help address this issue?

Many years back, specifically in 2004, an applicant for naturalization will have to wait for 14 months before s/he is called for an interview. To address the increasing delay in the processing of applications, the USCIS created the “Backlog Elimination Program” with the purpose of working smarter and eliminating redundancies in the adjudications of visa petitions and applications. At that time the number of backlog of cases was approximately 1.7 million. After 2 years of implementing the Backlog Elimination Program, the processing time for naturalization applications was reduced from 14 months to 5 months. In fact, in an election year, such as in the year 2016, the naturalization applications were adjudicated in three months.

In 2017, there were changes in USCIS policies that resulted in processing delays. According to the U.S. Department of Homeland Security, there is now a net backlog exceeding 2.3 million in delayed cases. The study of the American Immigration Lawyers Association (AILA) indicates that number amounts to more than 100% increase over the span of one year. If an applicant for naturalization would notice now, there is an average of 10-19.5 months before the application is adjudicated. Other than naturalization applications, the other visa applications that are suffering from processing delays are the petitions for immediate relatives (I-130); applications for employment authorization (I-765) and applications for adjustment of status(I-485).

A spouse of a U.S. citizen applying for lawful permanent resident must now wait at least 17.5 months before the spouse is called for the interview on the I-130 and 485 application. An employment authorization document application is taking now at least 4 to 6 months if it is based on adjustment application. Other basis for applications for employment authorization now take anywhere from 6.5 to 8.5 months before being adjudicated and released.

While historically, staffing levels and volume of cases received at the USCIS are contributory to the delay, shift in policies being implemented by USCIS now have the same effect. DHS stated in its report to Congress in 2018 that “policy shifts” are factors influencing its diminished per hour case completion rate. One of the changes in policies are the elimination of the long standing deference policy which gives deference to prior determinations involving the same employer and same position. Now the USCIS is assessing and re-examining prior approved cases. Other policy changes are the (1)requirement for a domestic interview for employment-based petition; (2) adopting extreme vetting security protocols (even if existing screening measures are adequate) and (3) adding enforcement duties to USCIS officers under the new NTA policy where an adjudicating officer is required to issue Notices to Appear to individuals with denied petitions. Undeniably, diversion of resources from adjudication to enforcement could slow down case processing.

These delays had adversely affected applicants, their families and their employers – resulting in job losses, inability to travel internationally for important family and business events or simply the inability to obtain social security numbers and driver’s licenses.

USCIS is an agency created by Congress, hence, it is just appropriate that it remains accountable for the delays in adjudication. Affected U.S. citizen businesses and families and immigrant advocates must contact their congressional representatives and urge them to direct USCIS to focus on its service oriented purpose as an agency, create a backlog elimination program and remove enforcement functions to resolve this critical issue of adjudication delays.

(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 this website tancinco.weareph.com/old)

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

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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)