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H-2B visa – A Path to Employment in post-Pandemic USA

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A significant number of U.S. employers are experiencing a shortage of employees as a result of the “Great Resignation” brought about by the pandemic.

With this reality U.S. businesses find themselves in need of employees who either left or were let go during the height of the coronavirus outbreak.

The United States Citizenship and Immigration Services (USCIS) allows only 66,000 visas for each fiscal year. But recently, more visa numbers are being added to this temporary work program. USCIS announced in May 2022 that 35,000 additional H-2B visas were made available for the second half of the fiscal year 2022.

The H-2B visa could well be any immigrant’s path to employment in the United States, albeit only temporarily.

What is the H-2B?

The H-2B visa is also known as the temporary nonagricultural worker visa.

These are given to non-Americans who would like to work for companies that would otherwise suffer “impending irreparable harm” if they did not employ non-citizens.

Here are the conditions that need to be met for granting the visa:

  1. The employment needs to be for a limited period
  2. The limited period must be less than a year
  3. The employers must prove that there are not enough American workers to do the temporary work
  4. The employment of the non-Americans must not affect the wages for American workers posted in similar jobs

Those who wish to get an H-2B meanwhile need to get a job offer from an American employer that can meet the above criteria.

Applicants need to prove that they will return to their country after the temporary employment.

After the first limited period is complete, the employee can extend their employment for up to 3 years if the employer can prove that the employee is still needed.

The problem and the opportunity

The problem is that within days of the USCIS’s announcement, the cap for applications was already reached.

But, this is not the end for H-2B and other paths for employment.

The 35,000 cap was announced after the US Bureau of Labor and Statistics reported 11.4 million job openings in April.

Months later, employers are still looking for employees, and they may well have their sights beyond America alone.

For tailored advice for those interested in the H-2B and other topics on migration, do not hesitate to reach out to a legal expert.

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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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Latest Court Ruling Affects First Time DACA Applicants

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On July 16, 2021, a federal court Judge Andrew Hanen ordered the U.S. Citizenship and Immigration Services (USCIS) to stop the processing and approval of new DACA applications. What is the impact of this decision on DACA recipients and those with pending DACA applications?

Jose turned 18 years old in January 2021.  When Jose was 5 years old, he was brought to the United States by his Aunt and his immigration status was never legalized. He practically grew up in the United States and completed his high school education and dreams, one day, of becoming a physician.

When President Biden was elected, Jose filed for protection under the Deferred Action for Childhood Arrivals. This is the first time that he applied for DACA.  The U.S. Citizenship and Immigration Services acknowledged receiving his application but no action has been taken so far.  On Friday, July 16, 2021, Jose learned that the Federal Court Judge ruled against new DACA applicants. What are the chances that he will be granted employment authorization and protection under DACA?

The DACA Program

In 2012 President Obama created a policy called Deferred Action for Childhood Arrivals (DACA), calling for deferred action for certain undocumented young people who came to the U.S. as children. Applications under the program began on August 15, 2012. More than 800,000 DACA eligible individuals filed for protection and employment authorization under this DACA program.

Legal Challenges

DACA has always been the subject of legal challenges where certain States question the legality of the DACA program. When former President Trump took office, he immediately issued an order rescinding DACA. Several lawsuits were filed questioning the rescission of the DACA program.

On June 18, 2020, in Department of Homeland Security v. Regents of University of California,the U.S. Supreme Court struck down the Trump administration’s termination of the DACA program and ruled that the termination of DACA was “arbitrary and capricious” under the Administrative Procedures Act (APA). While it ruled against its termination, the Court did not rule on whether or not DACA itself is lawful, but merely held that the Trump administration did not follow the law when it tried to terminate the program. In Casa de Maryland v. U.S. Department of Homeland Security,  a federal judge in the U.S. District Court of Maryland ordered the Department of Homeland Security (DHS) to reinstate the DACA program to its 2017, pre-termination status and to start accepting new applications.

On July 16, 2021, Judge Andrew Hanen, a federal judge in the State of Texas, issued a ruling declaring DACA as unlawful since, according to his decision, the Department of Homeland Security has no authority to create DACA and to prevent immigration officials from enforcing the removal provisions of the law.

Impact of the Decision: First Time DACA Applicants Adversely Affected

Jose’s application as illustrated above will be put on hold as a result of the recent decision.

Those who have received prior DACA protections and employment authorizations are not affected by the decision. Unfortunately, first time DACA applications will be placed on hold by the U.S. Citizenship and Immigration Services which means that no new DACA applications will be approved at this time. The federal Court decision blocked USCIS from approving any new DACA cases. Hence, all individuals who have submitted DACA initial applications (those that never had DACA and are applying for the first time) and have not received an approval from USCIS will have their application held. This applies to all initial cases that were not approved prior to July 16, 2021.

What about individuals who already had prior DACA for the first time and are renewing? If an applicant was recently granted DACA for the first time, his/her DACA will remain valid and may be renewed.

Future of DACA

President Biden vowed to appeal the federal court decision. But while this is on appeal, the new DACA applicant’s fate will be put on hold. The more permanent solution is for Congress to pass the American Dream and Promise Act which bill is waiting to be passed.

President Obama emphasized the importance of passing legislation to protect our DREAMers.  On his Twitter posting, he said that “For more than nine years, DREAMers have watched courts and politicians debate whether they’ll be allowed to stay in the only country many of them have ever known, it’s long past time for Congress to act and give them the protection and certainty they deserve.”

Let us continue to strongly support our DREAMers, by calling and urging our representatives in Congress to pass the American Dream and Promise Act. Undeniably, our young DREAMers deserve better.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with 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 www.tancinco.com)

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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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Unauthorized Use of Social Security May Result in Removal

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Fernando entered the United States in 2010 without a valid visa. To be able to work in the United States, he used a social security number of another individual illegally. In 2015, he was convicted of the “use of an unauthorized social security number” in violation of federal law (42 USC 408(a)(7)(B). Later the Department of Homeland Security charged Fernando as being removable because his criminal conviction was considered as conviction of a crime against moral turpitude (CIMT). He was ordered removed by the Immigration Court as his cancellation of removal was denied. Fernando’s appeal to BIA was denied and on petition for review the 5th Circuit Court of Appeals affirmed the BIA decision.

In a similar case pending with the Supreme Court, the Pereida, a long time resident of the United States with U.S. citizen children was put in removal proceedings. He has an underlying case of unauthorized use of social security number but his criminal conviction was a misdemeanor state offense of criminal impersonation under the Nebraska criminal statute. The immigration court ordered him removed considering the conviction as a crime against moral turpitude. BIA affirmed the immigration judge’s decision.  The case is still pending with the Supreme Court. Oral arguments were heard in October 2020 and no decision has yet been rendered.

Case to Case basis

While the two cases are similar in facts, the second case of Pereida was a state conviction while that of Fernando was clearly a federal crime. Legal arguments will be centered on whether the elements of the state crime corresponds to the federal offense listed on the Immigration and Nationality Act. 

Conviction for unauthorized use of social security number is a crime against moral turpitude and is a deportable offense. But each case is different. The underlying offenses must be analyzed on whether they clearly fall under the federal offense grounds for removal. Also, legal counsels should be able to look into any post-convictions relief if they are available to lessen or erase the immigration consequences of the crime.

On President Biden’s first day of office, he issued an Executive Order revoking Trump’s 2017 Executive Order on Enhancing Public Safety in the Interior. Thus, ICE, USCIS and CBP released a Memorandum focusing only on removing individuals who are threats to national security, border security and public safety. Conviction of a crime against moral turpitude for unauthorized use of social security is a fraud offense and does not fall under these priorities. However, without clear directives from ICE, favorable discretion may or may not be exercised to not enforce removal of those with misdemeanor offenses and with strong family ties.

Pathway to Citizenship 

In the meantime, it would be best for those still waiting to avail of the “pathway to citizenship” to be good citizens and to stay away from engaging in unlawful activities to avoid complicating future immigration applications. Or better yet, to have your case assessed if you have criminal case history to determine possible legal options of obtaining permanent resident status or availing of future options to “pathway to citizenship.”

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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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The “ON & OFF” Implementation of the Public Charge Rule

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For the last nine (9) months beginning on February 24, 2020, the implementation of the new public charge rules has been halted at least two times on July 29, 2020 and November 2, 2020.

As of this writing, the public charge rules are in effect and are implemented by the U.S. Citizenship and Immigration Services for all immigrant visa applicants and certain non-immigrant visas.

Applicants for immigrant visas have been confused by press releases on whether public charge rule applies and if they have to submit the Form I-944 in their applications for adjustment of status.

Below is a summary of the result of litigation and court rulings on the issue of public charge. The annotation ON and OFF are written to indicate whether the public charge rule was in effect. (ON means that they are implemented and OFF means the rules are suspended)

The United States and the rest of the world are still facing the challenges of a global pandemic. The harsh public charge rules have discouraged several immigrants from applying for public benefits that could prevent them from contracting or treating those who are already afflicted with COVID-19. With the coming new administration, it is our hope that these new public charge rules be suspended for the greater good of the community and in the interest of promoting public health.

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Filipino Students Among Nationals with More Than 10% Overstay Rate: DHS Propose Rule to Limit Validity of F, J AND I visas to 2 Years

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On September 25, 2020, the Department of Homeland Security (DHS) published a proposed regulation that would establish fixed end dates on students, exchange visitor visas and foreign media representatives.

 Under the proposal, individuals applying to either F or J status would be eligible to stay in the United States for the length of time indicated by the program end date noted in their Form I–20 or DS–2019, not to exceed 4 years. In some cases, international students and scholars would be limited to 2 years. Filipino students are included in the category of those with 2 years validity. 

Why are Filipino students being singled out for 2 years validity instead of 4 years?

The 2 years visa is proposed for Individuals who were born in or are citizens of countries designated as state sponsor of terrorism– Iran, North Korea, Sudan, and Syria. They also limited the validity period to 2 year of students who are citizens of countries with overstay rates exceeding 10 percent.  

According to the USCIS data, the Philippines has an overstay rate of 13.28% or a total of 1,452 students and exchange students who did not leave the country at the expiration of their visas.

The 2 year visa is subject to renewal by filing an application for extension on Form I-539. The extension could be approved by the USCIS if the program length goes beyond the minimum initially granted, additional time needed is due to a compelling academic reason, a documented medical illness or medical condition, or circumstances beyond the student’s control. USCIS considers failing classes as within the control of the student, so that academic challenges would no longer generally be a basis for extension.  

F and J nonimmigrants who are properly maintaining their status would be authorized to remain in the United States in F and J status until the end date on their Form I-20 or DS-2019, not to exceed a period of 4 years from the final rule’s effective date, plus a grace period of 60 days for F nonimmigrants and 30 days for J nonimmigrants. If they need additional time to complete their current course of study or exchange visitor program, including requests for post completion optional practical training (OPT) or STEM OPT, or would like to start a new course of study, they would have to apply for an extension of stay.

The proposed rule may not be finalized soon as it is still open for comments until October 26, 2020. It could probably be withdrawn if there is a change in presidential administration.