Tag: U.S. Department of State

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Doctor “lost” his U.S. Citizenship after Renewing his Passport

Doctor Lost Citizenship after Renewing Passport
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A 62 year old doctor, born in the United States tried to renew his U.S. passport but instead lost his U.S. citizenship. This story originally was published by the Washington Post in November 2023.

Dr. Siavash Sobhani who has been practicing medicine for 30 years and is nearing retirement has always been a holder of a U.S. passport.  He also has proof through his birth certificate that he was born in the United States.  

The U.S. Department of State confirmed his U.S. citizenship by the issuance and past renewals of his U.S. passport.  His last renewal came as a surprise when he was denied issuance of a U.S. passport and was informed that he was in fact not a U.S. citizen. 

Jus Soli Not an Absolute Rule

The United States follows the jus soli principle of citizenship  where a person who is born in the United States is considered to be a U.S. citizen.  But this general rule is not absolute.  There are also classes of individuals that are exempt from the application of this citizenship rule.

Under pertinent regulations, children of high level credited foreign diplomats on the Department of State’s Blue List who are born in the United States are not United States citizens.

The rule states that a “person born in the U.S. to a foreign diplomatic officer accredited to the United States,as a matter of international law, is not subject to the jurisdiction of the United States.  That person is not a United States citizen under the Fourteenth Amendment to the Constitution.”

Who are the Foreign Diplomatic Officers?

Foreign diplomatic officers are those listed in the State Department Diplomatic List known as the “Blue List.”  These include ambassadors, ministers, charges the ‘affaires, counselors, secretaries and attaches of embassies and legations as well as members of the Delegation of the Commission of the European Communities..

Who are NOT Foreign Diplomatic Officers?

Employees of foreign diplomatic missions whose names appear in the State Department list entitled “Employees of Diplomatic Missions Not Printed in the Diplomatic List” also known as the “White List”. Also included are (1)employees of foreign diplomatic missions accredited to the United Nations Organization of American States or foreign diplomats accredited to other foreign states; (2) foreign government employees with limited or no diplomatic immunity such as consular officials named on the State Department list entitled “Foreign Consular Officers in the United States” and their staffs.

In the case of Dr. Sobhani, he was born in the United States to a parent who is foreign diplomatic officer from Iran.  When the Department of State realized this through his last submission of his application for renewal, he was denied issuance of his passport.

Rectifying the Mistake

What this means is that the U.S. government can make a mistake decades back and there is no statutory period to rectify this.  Hence, Dr. Sobhani was taken aback when the Department of State refused renewal of his passport.  In fact, he did not lose his U.S. citizenship, he actually did not have U.S. citizenship to begin with since his father was a foreign diplomatic officer not subject to the jurisdiction of the United States.

For those who were born in the United States of foreign diplomatic officer parents, you may want to examine your citizenship status.  If you are not a U.S. citizen at the time of birth and your parents were diplomatic officers as defined above, you are still entitled to reside in the United States as lawful permanent residents.  After residing in the United States as permanent residents for 5 years, you may then apply for naturalization as U.S. citizens.  This is what happened to Dr. Sobhani, he had to start applying for his lawful permanent residence and apply for citizenship after 5 years.

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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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Updates on Processing of Visas at the U.S. Embassy

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According to the U.S. Department of State, the U.S. Embassies and consular offices are using a tiered approach to prioritizing immigrant visa applications based on the category of immigrant visa, as they resume and expand visa services. Where possible, consular officers are scheduling some appointments within all of these four priority tiers every month: 

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

The U.S. Embassy in Manila published on their website that routine visa operational services remain suspended. Based on their announcement, it appears that the consular section is currently processing Tiers One and Tiers Two. In the U.S. Embassy website, it describes what visas are being prioritized.

Immigrant Visa (IV): The Embassy is currently processing limited numbers of the following:

  • Cases for applicants previously interviewed and refused under INA Section 221(g) for additional document submission or processing.
  • Interviews for any case with a derivative applicant who is turning 21 years old and/or risks losing eligibility as a child or derivative.
  • As capacity allows: Interviews for IR-1, CR-1, IW-1, IR-2, CR-2, IR-3, IH-3, IR-4, K-1/2, IH-4, IR-5, SB-1, and I-131A applicants whose cases are already at Post for processing.
  • Visa interviews for all other immigrant visa categories remain suspended until local conditions and capacity allows.

Nonimmigrant Visa (NIV): The Embassy continues to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission-critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students and exchange visitors (F-1, M-1, and J-1) and temporary employment visas (H-1B, H-2B, and L nonimmigrants). Routine visa appointments and processing for B1/B2 (Business/Tourist) remain suspended with the exception of interview waiver cases.

The U.S. Embassy in Manila is processing those visa applicants who were previously interviewed and  refused under INA Section 221g. Yet, it also mentions that only a limited number of visa interviews are being conducted. So for preference categories, visa interviews remain suspended. Also, those who are just awaiting for interviews and have no prior interviews will have to be patient and wait until the local COVID-19 situation in the Philippines improves.

Immediate relatives of U.S. citizens are being interviewed “as capacity allows”. This includes minor children, spouses and parents of U.S. citizens. The same rule applies to fiancé visa applicants and returning resident visas even if their visa applications are already in the U.S. Embassy.

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Trump’s Covid-related Immigration Ban has Expired: Will All Visa Processing Begin Again?

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Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expired on March 31, 2021.

According to the U.S. Department of State, visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing phased resumption of visa services guidance.  

The U.S. Embassy in Manila maintains limited routinary services given the current local condition in the Philippines and given the limited staffing resources. There is no specific date when the U.S. Embassy in Manila will resume full routinary visa services but the consular officer will continue to  provide emergency and mission-critical visa services.

As of March 15, 2021, the U.S. Embassy in Manila is processing the following limited number of cases: 

Immigrant Visa:  

  • Cases for applicants previously interviewed and refused under INA Section 221(g) for additional document submission or processing.
  • Interviews for any case with a derivative applicant who is turning 21 years old and risks losing eligibility as a child.
  • Interviews for Immediate Relative family members of U.S. citizens, including intercountry adoptions: IR-1, CR-1, IR-2, CR-2, IR-3, IH-3, IR-4, IH-4, and IR-5.
  • Expedite-approved mission critical cases, such as fiancé(e)s of U.S. citizens and their children (K-1, K-2) if there is a terminal eligibility deadline (age out or one year issuance deadline for K-1 of an issued K-1 approaching) or active U.S. military petitioners as well as employment-based (EB-3) immigrants with healthcare positions on a case-to-case basis.
  • Visa interviews for all other immigrant visa categories remain suspended until local conditions and capacity allows.

Nonimmigrant Visa:  

The Embassy continues to prioritize travelers with urgent travel needs, foreign diplomats, and certain mission-critical categories of travelers such as those coming to assist with the U.S. response to the pandemic, followed by students and exchange visitors (F-1, M-1, and J-1) and temporary employment visas). 

Visa appointments and processing for B1/B2 (Business/Tourist) remain suspended. 

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Department of State’s Update on Visas for Medical Professionals

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The following is a March 26, 2020 update from the U.S. Department of State.

“We encourage medical professionals with an approved U.S. non-immigrant or immigrant visa petition (I-129, I-140, or similar) or a certificate of eligibility in an approved exchange visitor program (DS-2019), particularly those working to treat or mitigate the effects of COVID-19, to review the website of their nearest embassy or consulate for procedures to request a visa appointment.

For those foreign medical professionals already in the United States:
J-1 Alien Physicians (medical residents) may consult with their program sponsor, ECFMG, to extend their programs in the United States. Generally, a J-1 program for a foreign medical resident can be extended one year at a time for up to seven years.

Note that the expiration date on a U.S. visa does not determine how long one can be in the United States. The way to confirm one’s required departure date is here: https://i94.cbp.dhs.gov/I94/#/home.

Those who need to extend their stay or adjust their visa status must apply with USCIS. Their website is here: https://www.uscis.gov/visit-united-states/extend-your-stay”

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July 2019 Priority Dates Advanced to “Current” for Filipino Nationals Under the F2A & EB3 Visa Categories: What This Really Means to Visa Applicants

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There is good news for visa applicants under two visa categories. For the July 2019 Visa Bulletin, applicants from the Philippines who are waiting for their priority dates to become current under the F2A and EB3 category will benefit from the “current” availability of priority dates.

F2A visa categories are spouses and minor children of lawful permanent resident while EB3 categories are the professionals, skilled workers and other workers. The published July 2019 visa bulletin indicates that the F2A and EB3 categories’ priority dates are current.

Generally, a visa applicant may initiate the application for visa and be interviewed for his/her eligibility when a priority date is current. The immigration process undertaken may either be an application for adjustment of status for those who are already present in the United States or through consular processing for applicants who are still in the Philippines.

Perplexing – Current But With Cut Off Date?

The spouses and minor children of lawful permanent residents who have approved I-130 petitions with priority dates that are current may initiate either adjustment of status or consular processing. The fact that is it current means that a visa is available. However, if one reads the July 2019 visa bulletin, what is noticeably unusual is the date under the ”filing” chart. While the “final” chart clearly shows that priority date under F2A as current, the filing chart indicates a cut off date of March 8, 2019. So even if the priority date is current, F2A beneficiaries with March 2019 are the only ones who may adjust or undergo consular processing.

Charles Oppenheim of the U.S. Department of State stated that the cut off date of March 2019 “filing” chart was done intentionally to avoid completely opening floodgates to consular filings under this category. He also explained that moving the final action date to current is intended to spur responses to the NVC letters but it is not expected to have any impact on the number of usage for the current fiscal year (FY2019). What this means is that F2A beneficiaries from the Philippines may start the consular processing but since the number of visas are still the same, there may be a possibility that this F2A category will retrogress again in the coming months. Those who are mostly likely to benefit are those with priority dates of March 8, 2019 under the F2A.

EB3- Visas Available But Only for a Limited Time

Employment-based third preference, or most commonly known as EB3 category, is the classification for professionals, skilled workers and unskilled workers. Most healthcare professionals fall under this category like the registered nurses, physical therapists and occupational therapists. Other workers under this category includes unskilled workers or those who do not require bachelor’s degrees such as the caregivers.

Unlike the F2A visa categories, the filing and final charts under the EB3 category indicate that the status is “current”. Filipinos who have EB3 visa petition approvals are now ready for visa processing this month of July 2019.

Given these positive changes this month of July, Filipinos with approved petitions under the F2A and EB3 categories must take immediate action to take advantage of this noteworthy update on the visa bulletin. There is a short window to file between now and the end of July 2019. According to Mr. Oppenheim, It is anticipated that the final action date for EB3 will retrogress again next month.

(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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Social Media Disclosures on U.S. Visa Applications

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The U.S. Department of State recently announced that the visa application forms were revised to include additional questions relating to applicants’ social media platforms. What will a prospective visa applicant anticipate by this social media monitoring? Will there be more visa denials as a result of this added scrutiny by the consular officer?

Social media screening rules were first published by the Department of State on March 30, 2018 in response to the current administration’s 2017 Presidential Memorandum calling for heightened vetting of new immigrants. The forms that were revised to conform to these changes are DS160 and DS156 for non-immigrant visa applicants and the DS260 for immigrant visa applicants.

An applicant for U.S. visa may notice that when downloading the revised forms, additional information, under “Address and Phone Information” page, are required. There is a list of multiple social media platforms and among those listed are: Facebook, Google+, Instagram, LinkedIn, Pinterest, Twitter, YouTube. The applicant must click the platforms he had in the last 5 years from date of application and provide any identifiers used. If the platform used is not on the list, the applicant will be given the option to provide information about any social media identifiers associated with any other platforms. Exempt from this requirement are social media accounts of multiple users within a business or other organization.

Only identifiers such as usernames/user IDs, handles, screen-names tied to the social media accounts are required. Passwords will not be asked and applicant must not voluntarily reveal the passwords. Also, if the applicant has a social media presence and does not wish to reveal it on the form he cannot delete his account or answer “none”. If this is done, the applicant will most likely deny the application for misrepresentation if the consular officer subsequently discovers prior use of a social media platform. So it is advisable to be revealing all platforms used when accomplishing the form.

Other questions seek five years of previously used telephone numbers, email addresses, and international travel; whether the applicant has been deported or removed from any country; and whether specified family members have been involved in terrorist activities.

Knowing that social media content is easy to misinterpret, what standards in reading content will be used by consular officers to determine a threatening message and in assessing eligibility for the issuance of a visa? What if the visa applicant erroneously sent a happy emoji to a posting of another user condemning a tragic incident? Will this visa applicant become a suspect? Will there be biases on postings expressing differing religious and political views? Social media content is very vulnerable and may be magnified and taken out of context. At this point, it is too late for visa applicants to start sanitizing their postings and social media presence. There should be freedom of expression on any medium and this new disclosure requirement should not serve to curb protected speech of visa applicants. Perhaps, the least that could be done by prospective travelers is to stay vigilant and be more mindful of their postings.

The current visa vetting system before these disclosure requirements is very thorough and as it is, it is known to identify national security threats. It remains to be seen whether these new disclosures will enhance national security.

(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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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)

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Philippines Ranks Second in List of Countries with Most Backlogged Petitions

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The U.S. Department of State released a report indicating the number of petitions that are still considered pending for issuance of visas. In the numerical system of immigration, there are only limited number of visas that may be allocated in a given year. The worldwide quota for family based petitions each year is 226,000 and each country gets 7% of this quota. For the petitions filed by US citizens or lawful permanent residents for their qualified relatives in the Philippines, this means that only 15,820 are issued each year.

Immediate relative petitions for spouses, parents and minor children of U.S. citizens do not fall into a category where they have to wait for a visa to be made available. These immediate relative visa petitions have immediate visas available but will have to undergo a visa approval process and a consular processing. On the other hand, family preference petitions relating to petitions filed by U.S. citizens on behalf of their adult single (F1B), adult married children (F3), their siblings (F4) will have to wait for their priority dates to be current. The same holds true to petitions filed by green card holders on behalf of their spouses, unmarried minor (F2A) or unmarried adult (F2B) children.

An approved preference petition will have to wait for its priority date to become current before a visa may be issued. When there are more petitions filed than the visas that are available, a backlog is created. This means that petitions are adjudicated on a first come first serve basis depending on what the priority date is on the petition. Priority date is the date when the petition was filed and it is usually reflected on the the Approval Notice issued by the U.S. Citizenship and Immigration Services.

Let us examine the severity of the backlogs in family petitions filed on behalf of Filipino nationals. As of November 1, 2018, there are 3,671,442 petitions that are on the pipeline waiting for visas to be issued. The top 3 countries with the highest waiting list are:

  • Mexico with 1,229,505
  • Philippines with 314,229
  • India with 298,571

The petitions that are mostly backlogged for Philippines are petitions by U.S. citizens for their married children (119,315) under the F3 category and those for their siblings (113,489) under the F4 category.

Considering this backlog in the issuance of visa petitions, the longest waiting time for a Filipino family member to receive his/her visa under the F3 and F4 category is 23-24 years. As of the December 2018, the visa petitions that are being processed are those with priority dates of 1995. This means that only petitions that were filed in 1995 are being processed. And if your relative is filing the petition for a sibling or married child in 2018, the waiting time will be 23 years assuming that the the movement of the priority dates is yearly.

Other visa categories like petitions for unmarried adult children of U.S. citizens or permanent residents are taking at least 9-10 years before visas are issued. The petitions by lawful permanent residents for their spouses and minor children take more or less 2 years.

With lengthy waiting periods, situations relating to status or health of petitioners and even beneficiaries (persons being petitioned) may change. Some petitioners may live long enough to see the beneficiaries arrive in the United States and be reunited with them. Others may be stricken with illness and eventually decide to return to the Philippines or even die while waiting for their visas to be issued. Unfortunately, the petition dies with the petitioner rule applies generally unless there is humanitarian reinstatement.

Despite this broken immigration system, a Filipino immigrant does not give up and waits patiently for the relative to arrive. Time passes swiftly and I have witnessed significant number of family reunifications through this lengthy petition process. As I often say to my senior citizen clients, stay healthy and in jest, even tell them ‘bawal mamatay’ (you can’t die yet) if you have a pending petition for your relative. For a Filipino immigrant, family is everything. We are all inspired to work hard because of family and in the end “family unity” is what every immigrant attains to achieve.

(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 tancinco.weareph.com/old)