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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.

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Court Temporarily Blocks Increase in USCIS Filing Fees

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On September 29, 2020, the U.S.  District Court for the Northern District of California granted the motion for a preliminary injunction filed by eight non profit organizations that provide a variety of “services benefitting low-income applicants for immigration benefits.”

The court orders the suspension of the implementation and the effective date of USCIS Immigration Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements, 85 Fed. Reg. 46,788 (Aug. 3, 2020) (the “Final Rule”) in its entirety pending final adjudication of this matter.

Court also ordered Defendants Wolf, in his official capacity under the title of Acting Secretary of DHS; Cuccinelli, in his official capacity under the title of Senior Official Performing the Duties of the Deputy Secretary of DHS; DHS; and USCIS, and all persons acting under their direction, to suspend the implementation or enforcement of the Final Rule increasing the fees

This order will take effective immediately and will remain in effect pending trial of the case. On October 1, 2020, USCIS issued an update stating that while the rule is preliminarily enjoined, USCIS will continue to “accept USCIS forms with the current editions and current fees” and “use the regulations and guidance currently in place to adjudicate applications and petitions. This includes accepting and adjudicating fee waiver requests as provided under Adjudicator’s Field Manual (AFM) Chapters 10.9 and 10.10.”

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Visas Available for Filipino Registered Nurses, Physical Therapists & Other Healthcare Workers (including Caregivers)

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October 2020 Visa Bulletin Indicates Priority Dates for EB3 are “Current”

In a recent positive development for visa applicants under the employment-based third preference (often referred to as EB3) category visa, the Department of States just released its October 2020 Visa Bulletin on September 24, 2020. The new release shows that ALL employment-based preference categories for Filipino nationals are now current. When a priority date of a visa petition is current, it means that the visas are available. Many Filipino EB3 visa applicants will benefit from this visa availability including professionals, skilled or even unskilled workers. To take advantage of this visa availability, however, one need to understand the process of immigrating to the United States through employment-based preference categories.

Concurrent Filing of Employer Petition and Adjustment of Status

Persons seeking to immigrate to the United States as employment-based immigrants undergo two processes before an immigrant visas can be issued.

First, they must establish that they qualify in one of the employment-based immigrant categories, by having an employer file an “Immigrant Petition for Alien Worker”.

Second, is either the “Adjustment of Status” for those who are already present in the United States; or, “Consular Processing” for those who are still outside the United States. For those who are already in the US, the Adjustment of Status, can be concurrently filed with the employer petition.

The U.S. Citizenship and Immigration Services (USCIS) does not have to require a previous approval of an employer petition before being able to pursue the second step of the Adjustment of Status process. This is the “concurrent filing” which allows persons applying for permanent residence to file both the Application to Register Permanent Residence together with the employer’s Immigrant Petition for an Alien Worker. This is a huge advantage as applicants who are currently inside the US can wait for their greencard approvals in the United States (without needing to leave the country) and at the same time be qualified to get an employment authorization card pending the greencard approval.

Concurrent filing affects only the Adjustment of Status process and is permitted for applicants who are already in the United States and does not apply to those pursuing consular immigrant visa processing at the U.S. Embassy. It is important to remember, however, that there are numerous legal requirements that an applicant needs to qualify in order to benefit under this concurrent filing procedure. Among others, the applicant is required to be in “lawful” status or has 245(i) eligibility and not subject to grounds of inadmissibility.

Pre-Certified Occupations: Nurses & Physical Therapists

This new development benefits EB3 immigrants who are professionals, as well as other skilled or unskilled workers whose PERM applications have already been approved. Those exempt from the labor certification and who are considered pre-certified under the Schedule A occupations as per Department of Labor regulations may also concurrently file their applications.

There are a significant number of Filipino professionals who are beneficiaries of existing EB3 petitions. But we also know that there are many more Filipino nurses and physical therapists who are already pre-certified and can immediately take advantage of this visa availability. Schedule A occupations are those jobs for which there are not a sufficient number of U.S. workers who are able, willing, qualified, and available to fill the number of available jobs that exist in the United States, and the wages and working conditions of U.S. workers similarly employed will not be affected by the employment of foreign workers in Schedule A occupations. Currently, there are only two designated Schedule A occupations: First are the RNs; and, and Second, are the Physical Therapists.

Other health care workers such as licensed vocational nurses (LVNs), licensed practical nurses (LPNs), certified nurse assistants (CNAs), as well as nurses’ aides and caregivers do not qualify for Schedule A pre-certification. However, they may still qualify and benefit under this concurrent filing if they have approved Labor Certifications or PERMs.

Due to the pandemic and the visa restrictions brought about by Trump Proclamations, there have been very few family-based visas that were issued the past few months; thus, resulting in excess visa numbers that were re-allocated to the employment-based petitions. The forward movement of the priority dates is a result of the infusion of unused family-based visa numbers to the employment-based visas for Fiscal Year 2020.

It is uncertain as to when the employment-based preference categories for Filipino nationals will remain current. But for now until October 31, it is encouraged that those who do qualify explore ways to immediately apply for the visas while the availability remains current for it is unknown when the backlog will build up again.

(Lourdes ‘Atty Lou’ S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law PC and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw, LinkedIn or at 1-888-930-0808)

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What USCIS Employees’ Furlough Mean to Visa Applicants

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Beginning August 31, 2020, USCIS will operate with only one-third of its usual staff. According to USA Today, notices were already sent to 13,400 USCIS employees that they will be furloughed as of August 30, 2020.

Most USCIS operation costs are taken from fees that are paid by applicants or petitioner’s. But for this specific year, USCIS claims that because of COVID-19, there were less revenues received resulting in a budget shortfall. The agency was requesting Congress for a $1.2 billion bailout through the coronavirus emergency package which unfortunately was never passed into law. Claiming a shortage in budget, USCIS made a decision to furlough two thirds of its employees until a budget is allocated by Congress.

As a result of this impending furlough, several immigration related petitions and applications will be affected which includes among others:

  1. U.S. citizenship applications;
  2. Permanent residents needing to renew or replace their green cards;
  3. Applicants for employment authorization documents;
  4. DACA applicants seeking renewals of their deferred action and EADS;
  5. U.S. citizens and permanent resident petitioning their families;
  6. Applicants for adjustment of status, and;
  7. Petitions by US employers.

While these applications and petitions may still be filed, the fact that USCIS is operating with a skeletal staff means more delays in the adjudication process. Interviews of visa applicants before immigration offices will also be delayed if not suspended during the furlough.

Senator Patrick Leahy, Vice Chair of the Senate Committee on Appropriations tweeted on August 18, 2020 that USCIS has sufficient funds to avoid furloughs. In his letter to DHS, Senator Leahy said that USCIS has consistently projected that it has a carryover balance even after this fiscal year. He asked USCIS to reconsider its decision to furlough the 13,400 employees.

If Senator Leahy’s statement is accurate, what is then the reason for this furlough? Could it just be the administration’s policy decision to suspend immigration rather than a budget issue?

(Atty. Lourdes S. Tancinco is an immigrant advocate and legal counsel based in San Francisco CA. She is the principal and co-founder of Tancinco Law Offices and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw, or at 1-888-930-0808)

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USCIS Fees Increase on October 2020: Citizenship Application Fee up by 80%

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On August 3, 2020, USCIS published a Final Rule that significantly increases the USCIS fee schedule by adjusting fees by a weighted average increase of 20 percent, adding new fees, establishing multiple fees for nonimmigrant worker petitions, and limiting the number of beneficiaries for certain forms.

Notable among the applications affected by the increases are the following:

  • naturalization/citizenship applications (from $640 to 1160)
  • adjustment of status (from $750 to $1,130)
  • employment authorization documents ($410 to $550)
  • N336 appeal from N400 denials from $700 to 1,725).

The complete list of the changes in fees may be found on the government website: www.uscis.gov.
The rule also removes certain fee exemptions, changes fee waiver requirements, alters premium processing time limits, and modifies certain inter-country adoption processing.

The new fees will take effect by October 2, 2020.

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DHS Memorandum Policy on DACA contrary to Supreme Court ruling

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On June 18, 2020, the U.S. Supreme Court handed a decision invalidating the September 2017 Trump’s administration’s rescission of the Deferred Action for Childhood Arrivals (DACA). After one month from the decision, on July 28, 2020, the Department of Homeland Security (DHS) issued a Memorandum affecting more than 640,000 DACA recipients. The Memorandum states that it will begin to wind down legal protections for hundreds of thousands of Deferred Action for Childhood Arrivals (DACA) recipients. While it conducts a review of the program it will reject all initial DACA applications and will limit the protection for those renewing their DACA applications to one year, rather than two years.

1. What Does This New Policy Mean To The DACA Recipients?

Two categories of DACA recipients are affected: first, the current DACA recipients or those who are already receiving the DACA protections from June 2012 to the present; and second: new DACA applicants: those who became eligible beginning September 2017 were it not for Trump’s rescission.

For the first category, current DACA recipients: They will be limited to one year protection and one year employment authorization card instead of the usual 2 years. Furthermore, they will not be allowed to apply for advance parole.

For the second category, new DACA applicants who have been eligible for DACA are now prevented from applying for DACA protections because of the Trump administration’s recent policy memorandum. These are the thousands of young immigrants who have been waiting to qualify and apply for DACA protections.

2. What are the Administration’s reasons for limiting the applicability of DACA?

The reasons are stated in the DHS memorandum released: (1) Congress should have sole authority to resolve whether DACA should continue and (2) concerns about enforcement policy that enforcing the law against those in unlawful status will not be consistently exercised if it favors a group like the DACA population. These are all flimsy excuses that run contrary to vast majority of the Americans who support protection for these young immigrants. And more importantly, these reasons do not justify issuance of this policy that runs contrary to a judicial decision of the Supreme Court and that of the District court of Maryland requiring the USCIS to accept new DACA applications.

3. What steps should present and future DACA recipients take in view of this new policy?

In view of this policy, DACA recipients should be aware of the limitations of their protections which is only one year now, and that they should not allow their DACA protections and employment cards to expire. If their employment cards are expiring the DACA recipients should renew early. And for new DACA applicants, they should hold off to the filing of new applications until this policy is reversed or rescinded. For our readers, please contact your legislators to urge them to pass the The American Dream and Promise Act, a bill if enacted would result in a permanent fix to this issue of our Dreamers by creating a pathway to U.S. citizenship.

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Expanded Public Charge Rules Suspended During the Pandemic

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On July 29, 2020, U.S. District Court Judge George B. Daniels of Southern District of New York issued a nationwide injunction barring the Department of Homeland Security from enforcing the Trump’s Administration’s public charge rule during the declared national health emergency in response to the COVID-19 pandemic.

The new public charge rule that took effect in February 2020 makes it harder for foreign nationals to obtain green cards or even to extend or secure non-immigrant status. It was intended to discourage immigrants from utilizing government benefits and penalizes them for receipt of financial and medical assistance.

Judge Daniels also issued a nationwide injunction barring the Department of State (DOS) from enforcing its version of the public charge rule and its attendant health insurance proclamation for visa applicants abroad.

The subsequent decisions by the Second Circuit decision in Make the Road New York v. Cucinelli on August 4, 2020, and the Fourth Circuit decision in Casa de Maryland, Inc. v. Trump on August 6, 2020, do not impact this nationwide injunction.

Judge Daniels stated in his decision that there is ample evidence to show that because of the new public charge rule immigrants who do not have the financial capacity to seek medical care are discouraged from seeking testing and treatment for COVID-19, which impedes public efforts to stop the disease from spreading. So any person who does not access health care risks everyone of us from being infected with the coronavirus. It recognizes that every member of communities in this country including immigrants are able to access necessary resources they need to keep themselves healthy and safe.

Impact of the Decision
USCIS stated that for applications and petitions that USCIS adjudicates on or after July 29, 2020, it will not consider any information provided by an applicant or petitioner that relates to the Public Charge Rule, including information provided on the Form I-944, or information on the receipt of public benefits in Part 5 on Form I-539, Part 3 on Form I-539A or Part 6 on Form I-129.

Moreover, applicants and petitioners whose applications or petitions are postmarked on or after July 29, 2020, should not include the Form I-944 or provide information about the receipt of public benefits on Form I-485, Form I-129, or Form I-539/I-539A.

USCIS also indicated that it will issue guidance regarding the use of affected forms. In the interim, USCIS will not reject any Form I-485 on the basis of the inclusion or exclusion of Form I-944, nor Forms I-129 and I-539 based on whether Part 6, or Part 5, respectively, has been completed or left blank.

Availing of the Expanded Public Benefits Without Immigration Consequences
The Administration’s new public charge rule often referred to as the wealth test was enacted and made effective in February 2020 expanded the list of programs that will be considered as public benefits. So with this ruling the expansion of the list of benefits will not apply like access to publicly provided medical programs, food and housing assistance. Just like anyone of us, we all need to be able to access life-saving healthcare, food assistance and other essential services to protect our families without fear of being separated from our families or being denied visas in the future.

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10 Essential Info About Trump’s Ban on Legal Immigration

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On June 22, 2020, President Trump issued a second proclamation “Suspending Entry of Immigrants Who Present Risk to the U.S. Labor Market During the Economic Recovery Following the COVID-19 Outbreak.” This proclamation became effective on June 24, 2020 and will expire December 31, 2020.

1. What is the effect of the June 2020 Proclamation on legal immigrants?

The June 22, 2020 Proclamation (June Proclamation) extends the April 2020 Proclamation which suspended the entry of certain immigrants into the United States until December 31, 2020. It expanded also the ban on certain visa applicants mostly employment based nonimmigrant visas

The Proclamation suspends the issuance of visas for those seeking entry pursuant to a(n):

  • H-1B visa and any foreign national accompanying or following to join them;
  • H-2B visa and any foreign national accompanying or following to join them;
  • J visa, to the extent the foreign national is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any foreign national accompanying or following to join them; and
  • L visa, and any foreign national accompanying or following to join them

Significant number of Filipino visa applicants and businesses under the above mentioned categories(H1B, J and L) will be adversely impacted by this suspension. For the H2B visa category, Philippine nationals have already been barred from receiving this visa in the last 2 fiscal years.

Those severely affected are those outside the United States.

2. Who are NOT affected from the suspension of immigration?

Among others, these are the categories of individuals who are not affected by the Proclamation:

  1. Those adjusting status in the United States.
  2. Green card holders or immigrant visa holders at the time of the proclamation. If an individual is already in possession of an immigrant visa or green card before the Proclamation, they can still travel back to the United States.
  3. Those with temporary travel documents can still enter the U.S. Examples are individuals in possession of transportation letters issued by the U.S. Embassy, re-entry permits and advance parole issued by the U.S. Citizenship and Immigration Services (USCIS)

3. Can you explain what the “National Interest Exemption” is about?

The Proclamation on suspension of visas will not apply and consular officers will still grant issuance of visas if the visa applicant can prove that his/her case falls under the national interest exemption.

For purposes of determining who is covered under the “national interest” exemption, the Proclamation directs the Secretaries of State, Labor, and Homeland Security to determine standards for those to whom such an exemption would be available, including any individuals who:

  • are critical to the defense, law enforcement, diplomacy, or national security of the United States;
  • are involved with the provision of medical care to individuals who have contracted COVID-19 and
  • are currently hospitalized;
  • are involved with the provision of medical research at U.S. facilities to help the United States combat COVID-19;
  • are necessary to facilitate the immediate and continued economic recovery of the United States; or
    are children who would age out of eligibility for a visa because of this proclamation or Proclamation 10014.

4. What about other non-immigrant visas such as fiance, student and visitors visa holders are they still allowed to travel to the United States?

The June proclamation explicitly mentions the type of temporary visas that are suspended. These include mostly employment based visas: H1b, H2b (working visas); L1 (intra-company executives transferees); and J1 visas (seasonal workers in the hospitality industry, students on work-study summer programs and au pairs who arrive under other auspices).

June 2020 Proclamation does not ban other visas such as the visitors visas, fiance visas, student visas and the investors visas among others. So as soon as the U.S. Embassy opens to provide their regular consular services, applicants for the other types of visas that are not included in the proclamation may still pursue their application. Also, those who are in possession of non-immigrant visas not enumerated in the proclamation may still use their validly issued visas to travel.

5. A beneficiary of an approved visa petition was issued a printed immigrant visa on his passport after an interview with the consular officer at the U.S. Embassy. He was not able to enter travel to the U.S. yet and now wants to plan on going to the U.S. He is afraid that the Trump Proclamations will apply to him and would result in his inability to travel to the U.S. Will this individual be prevented from entering the United States because of the Proclamation?

No. The Proclamation does not affect those who are in possession of immigrant visas. Although he has not received his actual green card, he is considered to have gone through a completed process for him to be considered as an immigrant visa holder, hence, he can travel to the United States.

6. If the individual who was issued an non-immigrant employment based visa (H1B, L or J) or immigrant visa by the U.S. Embassy is not ready to travel to the United States during this COVID-19 pandemic, will he risk losing his immigrant visa by revocation?

No. Valid non-immigrant visas issued before the June proclamation and that were not used for travel will not be revoked under this Proclamation.

7. An adjustment of status applicant left the United States for a temporary visit abroad, will this adjustment applicant be able to return with his advance parole document?

Yes. An advance parole is considered as a travel document not covered by the Proclamation, hence this individual may travel back to the U.S. using his advance parole document.

8. A lawful permanent resident plans to file a visa petition for his minor children, will he be permitted to file a visa petition with the USCIS?

Yes, lawful permanent residents may still file for visa petitions on behalf of their minor children. What the Proclamation prohibits is the issuance of visas for these individuals. The proclamation exempts only minor children and spouses of U.S. citizens.

9. A visa petition was approved for a parent of a U.S. citizen. The parent was already interviewed before the Proclamation effectivity date of April 23, 2020 but no visa has been issued yet. Can this parent follow up on the issuance of his visa and travel to the United States?

No. Clearly, under the April Proclamation, which effectivity was extended until December 31, 2020, parents of U.S. citizens who have not been issued visas or are not in possession of visas may not be allowed to immigrate temporarily. They are covered by the Proclamations and are not exempt from the ban.

10. A child beneficiary of a preference immigrant visa petition is turning 21 years old and will age out during the period of suspension, what steps can s/he take before losing the opportunity to immigrate as a minor derivative child?

One of the categories of visa applicants that is part of the national interest exemptions refers to children who are aging out or turning 21 years old. This category will be exempt from the ban. So it is important to take steps and seek to qualify the aging out child as an exempt visa applicant quoting the provision under the national interest exemptions.