Tag: US Citizenship and Immigration Services

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Updates

U.S. Citizens with Expired Passports may travel back to the United States

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On May 21, 2021, the Customs and Border Protection and the U.S. Department of States announced that U.S. citizens will be able to return to the United States on an expired U.S. passport through December 31, 2021, if they:

  • are a U.S. citizen.
  • are currently abroad seeking to return to the United States.
  • are flying directly to the United States, a U.S. territory, or have only short-term transit (connecting flight) through a foreign country on their return to the United States or to a U.S. territory.
  • have an expired passport that was originally valid for 10 years (or 5 years if the individual was 15 years of age or under when the passport was issued).
  • have an expired passport that is undamaged and in their possession.

Please note that an expired U.S. passport may not be used to travel from the United States to an international destination for any duration longer than an airport connection.

DOS recommends U.S. citizens delay any travel abroad and reminds that return to the United States requires proof of a negative COVID-19 test result, taken within 72 hours of their flight’s departure.

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Updates

DHS Withdraws October 2020 Affidavit of Support Rule

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The U.S. Citizenship and Immigration Services (USCIS) announced on March 19, 2021 that proposed rule on affidavit of support dated October 2, 2020 will be withdrawn. This policy change is consistent with the Department of Homeland Security’s (DHS) commitment to reduce barriers within the legal immigration system. DHS and USCIS are committed to eliminating barriers that prevent legal immigrants from accessing government services available to them.

The 189-page October 2020 rule would have imposed higher qualifying and evidentiary requirements including production of bank information and credit reports. These requirements would have placed undue burden on the U.S. citizens petitioning their relatives who are signing affidavits of support. According to the USCIS, it is estimated that the cost of implementing these requirements on U.S. citizen petitioners is $2.4 billion over the next decade.

The withdrawal of this rule is just one of many policies that reverses the prior administration’s restrictive immigration rules. These changes are all consistent with President Biden’s Executive Order (EO) 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans.

Both the Department of Homeland Security and the Department of State are reverting to the public charge standard that had been in effect prior to the proposed changes.

Meantime, the DHS has reinstated the Form I-864W, Request for Exemption for Intending Immigrant’s Affidavit of Support, which allows certain applicants to seek exemption from the affidavit of support requirements. These applicants include: (1) individuals who have earned or can receive credit for 40 quarters of coverage under the Social Security Act (SSA); (2) children who will become U.S. citizens upon entry to the United States; (3) self petitioning widow/ers and (4) self-petitioning battered spouses and children. These applicants will be required to submit Form I-864W if seeking an exemption from the affidavit of support requirement.

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No More Trump Era Citizenship Test: Back to the 2008 Civic Test

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The U.S. Citizenship and Immigration Services (USCIS) announced on February 22, 2021 that it will revert to the 2008 version of the naturalization civic test. 

The Trump-era citizenship test is lengthy and doubled the number of questions immigrants must answer correctly to pass. In keeping with President Biden’s executive order directing federal agencies to “restore faith” in the immigration system and make naturalization more accessible, the USCIS will administer the 2008 civic test instead. 

The civics test is administered to applicants who apply for U.S. citizenship through naturalization and is one of the statutory requirements for naturalizing. Applicants must demonstrate a knowledge and understanding of the fundamentals of the history, principles, and form of government of the United States. The decision to naturalize demonstrates an investment in and commitment to this country. USCIS is committed to administering a test that is an instrument of civic learning and fosters civic integration as part of the test preparation process.

According to the USCIS, applicants who filed their application for naturalization on or after December 1, 2020, and before March 1, 2021, likely have been studying for the 2020 test; therefore, USCIS will give these applicants the option to take either the 2020 civics test or the 2008 civics test. There will be a transition period where both tests are being offered. The 2020 test will be phased out on April 19, 2021, for initial test takers. Applicants filing on or after March 1, 2021, will take the 2008 civics test.

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Updates

H1B Visa Registration to Start On March 9, 2021

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Every year, U.S. petitioners seeking to hire professionals who are foreign nationals undergo a lottery system to obtain H1B visas for their prospective employees. Thousands of applicants, including those from the Philippines, who are on student visas and graduated from U.S. schools and those who are foreign educated, have opportunities to apply for professional working visas as long as they are eligible. 

H1B is a professional working visa that will allow an individual to work in the United States for a specific U.S. employer and for a specific period of time. H1B visas allow workers to stay in the U.S. for up to three, or in some cases, six years and bring immediate family members with them. They also provide a pathway to receiving permanent immigrant visas or green cards.

The Lottery System

There are only 65,000 H1B visas each year plus 20,000 more reserved for individuals with master’s degrees or higher from U.S. institutions. With these limited numbers of visas, a lottery system has been put in place because there are more petitions submitted than the number of H1B visas available. Last year, there were 275,000 petitions filed which is way above the numerical limitations. 

For many years, the system was for the U.S. Citizenship and Immigration Services (USCIS) to choose randomly from among the submissions. Once it reaches its 85,000 petitions it will stop accepting petitions. It will then notify petitioners whose petitions were accepted or rejected.

The selection process changed on December 6, 2019 when USCIS announced a new electronic registrations system. This new system requires petitioner’s to register electronically (instead of filing a paper petition) with the USCIS and pay a $10 registration fee before an H1B cap subject petition may be submitted. Registration period is announced by the USCIS before actual filing takes place. Last year, registration started March 1, 2020 through March 20, 2020 or until enough registrations are reached to receive the numerical limit. USCIS then sends notices to H1B visas to those who are accepted or rejected.

The past Trump administration attempted to change the selection process.  USCIS would have prioritized H1B applications based on their wages with the workers offered the highest pay moving to the front of the line. On February 4, 2021, the USCIS announced that it will not implement this change because of technical challenges but instead will stick to the current lottery electronic registration system for the coming Fiscal Year 2022.

Registration period

USCIS announced that registration period begins on March 9, 2021 until March 25, 2021. Selected registrants by USCIS will be notified by March 31, 2021. USCIS will accept H1B petitions by April 1, 2021.

U.S. companies or businesses wishing to apply for the H1B visas for their employees need to plan early. They may contact their respective professional legal representatives to guide and assist them through the H1B process.

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Global Pinoy

Widows can get visas despite death of petitioners

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

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

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

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

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

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

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

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

Widow petitions

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

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

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

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

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

Effect of remarriages

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

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

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

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

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

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Global Pinoy

Fear of deportation arises over court-issued injunction

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A day before the US Citizenship and Immigration Services was scheduled to receive applications for Obama’s program known as Deferred Action on Childhood Arrivals (DACA) expansion, District Judge Andrew Hanen issued a temporary injunction. This ruling will temporarily put a hold on the implementation of Obama’s immigration programs.

Joseph was looking forward to filing his application for his employment authorization document. Having entered the United States when he was 10 years old, his parents never took necessary steps to legalize his stay.

On Nov. 20, 2014, when President Barack Obama announced his executive actions expanding the Daca, he became hopeful about getting a temporary work permit. Joseph completed his degree in computer science from a state university but could not get a better job because he does not possess a work permit.

When he heard about the temporary injunction on Obama’s executive actions, Joseph was disheartened and is now apprehensive again about his situation.

States’ lawsuit
In the case of Texas v. United States of America, a lawsuit was filed by 26 states against Obama’s executive actions. The plaintiffs questioned the constitutionality of the executive actions as it bypassed the US Congress on an immigration matter. This case is pending before Federal District Judge Andrew Hanen of Brownsville, Texas.

Judge Hanen was a nominee of George W. Bush, assigned to the United States District Court for the Southern District of Texas. He is a known conservative who has been a critic of Obama’s immigration policies. So when the decision to suspend the implementation of the program that will offer work permits and offer a three-year reprieve from deportation was issued on Nov. 16, 2014, immigrant advocates were not surprised.

The Obama administration has already announced that they are filing an appeal to a higher court on this decision.

In the meantime, thousands of undocumented Filipinos, potentially eligible for the Dapa (Deferred Action for Parental Accountability) and Daca programs of the executive actions in question and who are similarly situated as Joseph, are anxious about the effect of this injunction. The excitement about filing for benefits under the executive actions was suddenly cut short by this temporary injunction. It was an affirmation of the uncertainty of the executive actions, which validates the skepticism of many on Obama’s Daca and Dapa programs.

There is always the concern whether coming out of the shadows means risking one’s fate to becoming vulnerable and risk being sent back home to the Philippines after the three-year deportation reprieve is over. There are some who are placed in a situation of accepting any type of odd job just to earn and be able to send money to their families back home.

The fear of the consequences of the unknown may deter many from filing. Yet, there are also many who are hopeful as this may just be a one-time opportunity to obtain work permits. Thus, to some this may be a poisoned apple. To others, this is an apple that is already ripe and should be picked before it rots and falls to the ground.

Many experts agree that the Nov. 16, 2014 district court judge’s injunction is only a temporary hold and that full implementation of Obama’s executive actions will just be a matter of time.

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Global Pinoy

Convicted sex offenders are not qualified to file family petitions

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Deportations from the United States usually arise in cases of non-US citizens committing crimes or violations of immigration law. However, in certain instances, deportation may also arise when it is discovered that the petitioning fiancé or spouse had been convicted of a sexual offense against a minor.

John, a US citizen, petitioned Jenna as his fiancé in 2007. Jenna is a single parent who has a minor child from a prior relationship. The fiancé visa petition filed by John on behalf of Jenna was approved. The consular officer issued proper visas for Jenna and her minor child.

Upon arrival in the United States, Jenna immediately married John in a simple civil wedding ceremony. After the marriage, an application for adjustment of status was filed with the US Citizenship and Immigration Service (USCIS) so that Jenna and her daughter could become green card holders.

John and Jenna have a genuine relationship. They are a happy couple. They live together as husband and wife, and have plans to have a child of their own. While applying for the change of immigrant visas, an unexpected problem arose that shattered the couple’s family dreams. Instead of a green card, Jenna received a Notice to Appear for a deportation hearing.

Unbeknownst to Jenna, John had a criminal conviction in 1979 and was sentenced to a prison term for committing a sexual offense against a minor. This offense made him incapable under the Adam Walsh Act of filing a petition on behalf of a foreign national. The prior visa of Jenna was rendered invalid, and the application for adjustment of status was denied. Jenna and her minor child are now being ordered to leave the United States.

The Adam Walsh Act
Jenna filed an appeal for the removal case in the Board of Immigration. It was denied. What will happen to Jenna and John? Will they be separated forever because of the legal barrier imposed by the Adam Walsh Act?

The Adam Walsh Child Protection and Safety Act of 2006 (Adam Walsh Act) was enacted by the US Congress to protect children from sexual exploitation and violent crimes, prevent child abuse and child pornography, promote Internet safety, and honor the memory of Adam Walsh and other child crime victims.

The law prohibits US citizens and lawful permanent residents who have been convicted of any “specified offense against a minor” from filing a family-based visa petition on behalf of any beneficiary. The prohibition covers those convicted of kidnapping, false imprisonment, solicitation to engage in sexual conduct, use of a minor in a sexual performance, prostitution, criminal sexual conduct involving a minor or the use of the Internet to facilitate or attempt such conduct, and any other sex offense against a minor.

This prohibition applies unless it can be shown that the petitioner poses no risk to the safety or wellbeing of the beneficiary, including any derivative beneficiary. Beneficiaries include the spouse, fiancé, parent, unmarried child, unmarried son or daughter over 21 years of age, orphan, adopted child, married son or daughter, brother or sister.

Retroactive effect
John committed the crime against a minor in 1979, before the Adam Walsh Act was enacted. It had been 27 years since John was convicted of the offense when he met Jenna. He had served his sentence and was remorseful about his past conduct. He has committed no other crime since then. Jenna argued that since the crime was committed before the enactment of the law that prohibited the filing of family petitions by sexual offenders, his petition should not be considered affected by the prohibition.

The immigration court and the Board of Immigration Appeals agreed that the Adam Walsh Act does not contain a provision on its exact effectivity date. Nevertheless, it is applied retroactively because of the danger the offender may pose on the person being petitioned. It examined the law’s purpose, which is to “ensure that an intended alien beneficiary is not placed at risk of harm from the person seeking to facilitate the alien’s immigration to the United States. A petitioner who has been convicted of a “specified offense against a minor” poses a present danger as a potential sexual predator. Hence, John is still prohibited from filing a petition on behalf of Jenna.

No-risk exemption
John may still prove that he no longer poses a risk to the safety of his spouse and stepdaughter. This is the only exception available. However, any attempt to show that a petitioner has been rehabilitated and no longer poses a risk is measured by the highest standard available under the law, which is “proof beyond reasonable doubt.”

The effect of the Adam Walsh Act on Jenna and her daughter is that they may very well be removed from the United States as a result of John’s previous conviction. While this may be seen as antithetical to the policy of family reunification, we need to understand that it is also in the public interest to protect foreign nationals and minor children from the possible harm that could be posed by a convicted sexual offender.

It is not impossible to meet the high standard required by the USCIS and make a clear showing of rehabilitation from convictions involving crimes of sexual predation. It augurs well, however, that the standard is high, difficult and exacting, if we want to truly protect our children.