Tag: uscis

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USCIS Extends for 60 days Deadlines to File Responses to RFEs

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In response to the COVID-19 pandemic, U.S. Citizenship and Immigration Services announced this week that it is adopting measures to minimize the immigration consequences associated with responding to requests for evidence (RFEs) and notices of intent to deny (NOIDs) dated between March 1 and May 1, 2020. This rule also applies to notice of intent to revoke (NOIR), notice of intent to terminate (NOIT) or appealable decisions within AAO jurisdiction where the issuance date listed on the request, notice or decision is between March 1, 2020 and May 1, 2020.

As a result, applicants and petitioners who receive an RFEs or NOIDs dated between March 1 and May 1, 2020, any responses submitted within 60 calendar days after the response deadline set forth in the RFE or NOID will be considered by USCIS before any action is taken.

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USCIS/ICE/Immigration Courts in the SF Bay Area Updates

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Do You Have a Scheduled Hearing or Interview at the USCIS or Immigration Court in San Francisco?

See updated information below:

USCIS- San Francisco & San Jose
Interviews scheduled for March 17 through April 6 are cancelled. Officers are attempting to contact all scheduled interviewees to inform them of rescheduling. Most likely new interview dates will be for late May to June. Naturalization applicants with approved N400 and those scheduled for Oath taking on March 18 and March 25 will have their oath taking ceremony rescheduled to a later date.

USCIS- Fresno
Interviews are cancelled beginning March 18 at this USCIS office. All interviewees will receive rescheduled dates for their interviews.

You can also contact the USCIS through your online account or by calling the USCIS customer service number: Dial 800-375-5283 (for people who are deaf, hard of hearing, or have a speech disability: TTY 800-767-1833) to access automated information through an interactive menu 24 hours a day, seven days a week. If you are outside the United States or a U.S. territory, you can call 212-620-3418.

Biometrics ASCs:
Application Support Centers: Starting tomorrow, all six Bay Area ASCs are closed: San Jose, San Francisco, Fresno, Santa Rosa, Oakland and Salinas.

Immigration Courts:
If you have a master hearing (not individual hearing) please note that Master Calendar Hearings with schedule from March 16 through April 10 are postponed. Usual operations remain open specifically for filings except for Seattle.

ICE :
If you are required to do regular reporting before the ERO-ICE, note that the San Francisco ICE located at 630 Sansome Street remains open. But if anyone has a question about reporting, they should utilize the inquiry mailbox SFR-ERO-INQUIRIES@ICE.DHS.GOV to reschedule.

For questions about immigration matters or if you need legal representation or assistance, please contact our office at 1 888 930 0808 or email us at law@tancinco.com, or visit our website at tancinco.weareph.com/old.

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Overcoming “Break in Continuity of Residence” for Citizenship Purposes

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Arnel, a Filipino national, is a lawful permanent resident. He arrived in the United States in 2003 and resided with his U.S. citizen spouse. Arnel has substantial business ties in the Philippines and travels to Manila at least 3 times in a year but only for 2 months in duration. In 2018, he stayed for 9 months in Manila to attend to his business that was encountering some financial issues. Last year, Arnel decided to file for his naturalization to become a U.S. citizen. He was recently called for the interview last month February 2020. The USCIS officer informed Arnel that he was not eligible to become a U.S. citizen. He was told that he spent more than 6 months in the Philippines and so he broke the continuity of his residence for purposes of citizenship. Was the finding of ineligibility accurate?

The Physical Presence Rule

Applicants for naturalization must demonstrate that they have been physically present in the United States for more than half of the required time (three years for those married to and residing with a U.S. citizen and five years for all others). In addition, pursuant to Section 316(b) of the Immigration and Nationality Act, applicants must demonstrate that they have continuously resided in the United States, or put another way, have not abandoned their residence (since such a finding is often the outcome of a naturalization case denied for such reasons).

Breaks in Continuous Residence

There are 2 ways outlined in which the continuity of residence is broken. First is absence for more than 6 months but less than 1 years. The second one is absence for more than 1 year or more.

To be able to continue counting the residence for purposes of naturalization, the applicant must show continuity. Oftentimes, green card holders are not aware and are under the false belief that if they stay for more than 6 months outside the U.S. they may still consider this as continued residence.

On February 26, 2020, USCIS released a policy clarification on this issue, the highlights of which states that (1) an applicant absent from the United States during the statutory period for more than 6 months but less than 1 year, must overcome the presumption that the continuity of residence has been broken in order to remain eligible for naturalization and (2) clarifies that an applicant who USCIS determines to have broken the continuity of residence must establish a new period of continuous residence; the requisite duration of that period depends on the basis upon which the applicant seeks to naturalize.

Overcoming the Presumption For Continued Eligibility

An applicant may overcome the presumption of a break in the continuity of residence by providing evidence to establish that the applicant did not disrupt the continuity of his or her residence. Such evidence may include, but is not limited to, documentation that during the absence: (1) The applicant did not terminate his or her employment in the United States or obtain employment while abroad; or (2) The applicant’s immediate family members remained in the United States; and/or (3) The applicant retained full access to or continued to own or lease a home in the United States.

In the case of Arnel, the USCIS officer was correct in stating that he broke the continuity of his residence unless contrary evidence is submitted by Arnel. Evidence such as his regular and continued employment in the U.S., ownership of his home and residence of his immediate family in the United States will be helpful in overcoming the presumption. If the USCIS officer accepts his evidence and is convinced that there is continuity of evidence, then Arnel may be approved for his U.S. citizenship.

(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/tancincolaw, or at 1-888-930-0808)

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Are You At Risk of Being Stripped of Your U.S. Citizenship?

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Creation of Stand Alone Denaturalization Section Under the DOJ May Trigger More Revocation of U.S. Citizenship

On February 26,2020, the Department of Justice announced the creation of its Denaturalization Section dedicated to investigating and litigating revocation of naturalization. The newly created stand alone section will join the existing sections within the Civil Division’s Office of Immigration Litigation—the District Court Section and the Appellate Section. This move underscores the Department’s commitment to bring justice to terrorists, war criminals, sex offenders, and other fraudsters who illegally obtained naturalization.

This move follows the creation of Denaturalization Task Force within the U.S.Citizenship and Immigration Services in 2018 indicating the policy trend of the administration running not only after the undocumented immigrants but also after American citizens.

As may be read from the DOJ’s press release, Assistant Attorney General Jody Hunt emphasized the main reason for the creation of the denaturalization section: “When a terrorist or sex offender becomes a U.S. citizen under false pretenses, it is an affront to our system—and it is especially offensive to those who fall victim to these criminals. The Denaturalization Section will further the Department’s efforts to pursue those who unlawfully obtained citizenship status and ensure that they are held accountable for their fraudulent conduct.”

Denaturalization may be found in Section 340 of the Immigration and Nationality Act. There are only certain legal basis to denaturalize an individual and this is initiated by the government through the federal district courts. In the past it was seldom utilized except in extreme cases like in denaturalization of former Nazis who lied about their past who illegally procured naturalization.

Those who are most likely to be affected by the administration’s effort to strip U.S. citizenship from naturalized citizens may be divided mainly into 3 categories. These are immigrants who procured their citizenship illegally because of the presence of:

  1. Prior criminal conviction that was concealed: Those who concealed their criminal convictions on their naturalization applications and their criminal cases are grounds for removal may have their cases referred for naturalization. Note that criminal charges or convictions must have occured before and during the naturalization process.
  2. Prior removal cases and assumed identities: Ten (10) years ago, the U.S. government discovered hundreds of individuals who had prior deportation orders and who used different names in their green card and naturalization applications. These cases are now being investigated and may be re-opened for denaturalization.
  3. Material fraud and misrepresentation. This refers to those who lied in obtaining their green cards through fraud and misrepresentation. The lie must have a relation to the eligibility for green card or naturalization to be a basis for denaturalization.

Once an immigrant is identified for investigation by USCIS for purposes of denaturalization, the matter will be referred to the Department of Justice’s Denaturalization Section under the Office of Immigration Litigation and the Assistant U.S. Attorney. Thereafter, the case will be filed with the federal district court having jurisdiction over the residence of the immigrant being stripped of citizenship. When the case is filed with the court the naturalized U.S. citizen may present evidence to avoid denaturalization. Note that this is a judicial process and only a federal judge may strip one of U.S. citizenship. There is a due process involved and a right to a hearing. If a citizen is denaturalized, most probably this individual will be put in removal proceedings. Whether or not he will be deported depends on available relief or waivers.

Naturalized U.S. citizens must now realize that they no longer have a sense of permanence when it comes to their immigration status. If you believe that you fall into any of the category of those who might be affected by this denaturalization effort of USCIS, it will be best to revisit and re-examine your naturalization application, and have your case assessed by competent legal counsel. And, if there is a possibility of denaturalization, prepare yourself to defend yourself in the federal court and, in the worse case scenario, explore applicable waivers or defenses to avoid removal.

(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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2020 U.S. Immigration Outlook for Filipino Immigrants

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2020 is a Presidential election year. Whether the United States will have a new or a re-elected President, immigrants and their families will be facing major changes in immigration policies. Let’s examine and determine the prospects of 8 major immigration policy changes that may affect our Filipino immigrants.

The Filipino World War II Veterans Parole Program (FWVP)

The FWVP program was created in June 2016 in recognition of the extraordinary contributions and sacrifices of Filipino veterans during WWII. This program allowed their family members to join the veterans or their widows in the U.S. while their visa petition is waiting for visa availability. After 3 years, several hundreds of family members were allowed in on parole under the FWVP program. As part of the administration policy to eliminate parole programs, the USCIS announced in August 2019 that it will terminate the FWVP. Advocacy groups like the Asian American Advancing Justice, FilVetRep, and the Bayanihan Equity Center, among others, have been working hard to preserve the program. This 2020, unless the administration changes its mind about terminating the program, FWVP program will end after USCIS issuance of its final rules.

Increased USCIS Fees

In November 2019, USCIS announced that it will increase fees on petitions and applications. Among the many applications that are going to be affected are (1) Adjustment of Status application, an increase from $1,225 to $2,195; (2) DACA fees will increase from $495 to $765, an overall increase of 55 percent; (3) Naturalization application will increase by 83 percent, raising the fee from $640 to $1,170. Aside from the increase in fees, USCIS is eliminating fee waivers for naturalization, adjustment of status, green card replacements and renewal and employment authorization. The increase will take effect this 2020 and only after USCIS releases its final regulations.

Backlog in Family Petitions

As of November 2019, there are 291,392 approved visa petitions on behalf of Filipino nationals filed by their US citizens or green card holder relatives, awaiting visa availability with the National Visa Center. The backlog is still severe and there is still lengthy wait for visa availability in certain preference petitions. For Filipinos with petitions under the F3 and F4 visa category, the waiting period is more or less 21 years and for those whose petitions are F1 or F2B the waiting period is approximately 11 years. There are bills (RELIEF Act, S.2603 and H.R. 5327) pending before the 116th Congress which if passed will increase visa numbers and eliminate backlogs. Until these bills are passed into law, expect decades of waiting for certain petitions on behalf of Filipino nationals.

H1B Visa

On January 9, 2020, USCIS released its regulations on the registration system for H1B visa petitions. Instead of filing a full petition for a foreign national employee, the U.S. employer must complete a registration process that requires basic information about the H1B employer and the employee being petitioned. USCIS will open registration period from March 1 through March 20, 2020. Only those selected by USCIS lottery system will be able to file H1B petitions to meet the 65,000 cap.

Public Charge

Under the law, a visa applicant will not be allowed to enter the United States if the government believes that they are likely to become public charge or reliant on government assistance. In 2019, the USCIS issued a new definition of public charge rule to include those who receive either cash or non-cash benefits like housing or health care, from the government for more than 12 months during the 3 year period. The implementation of this public charge rule is suspended because of court litigation filed by several States and advocacy groups challenging the legality of the rule. The Supreme Court is expected to rule on this case this 2020. If the public charge rule takes effect, the legal impact will be on low income legal immigrants petitioning their relatives.

Deferred Action on Childhood Arrivals (DACA)

Deferred Action on Childhood Arrivals or DACA program was created in 2012 to grant young immigrants deferred status and employment authorization. In 2017, Trump announced that it was ending DACA. This resulted in several lawsuits filed against the administration challenging the decision to terminate DACA. The case was heard by the Supreme Court in November 2019 and a decision is expected anytime before June 2020. In the meantime, DACA recipients are allowed to renew their DACA status and employment authorization.

REAL ID

Beginning October 1,2020, federal agencies including Department of Homeland Security (DHS) and Transportation Security Administration (TSA) will only accept state issued driver’s licenses that are REAL ID compliant. This means that the state licensing agency must issue REAL IDs to those with valid identification and legal status. Those who are still in unauthorized status may not be issued READ ID compliant driver’s licenses and identification that will allow them to access federal offices or travel domestically through commercial airlines.

H2B Visa

In January 2019, nationals from the Philippines were banned from receiving H2B temporary working visas for one year. As of this writing, there is no update yet from the USCIS if in 2020, the Philippines will be allowed to become beneficiaries of new H2B visas.

These 8 immigration policies are just among the many policies that are anticipated to affect our Filipino immigrant community. The enforcement of immigration law has consistently been the highest priority of the Trump administration resulting in hundreds of thousands of ICE arrest since he took oath as U.S. president. After a decade, we still have not seen a major overhaul and change in immigration law. Hopefully, this 2020 decade, our leaders will finally pass a more humane and sensible immigration reform law; a more compassionate, relevant and rational one that will replace the dysfunctional immigration system we have right now.

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

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Visas for Spouses & Minor Children of Green Card Holders Available for December 2019

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Normally, one has to be a U.S. citizen to be eligible to file a simultaneous I-130 petition and I-485 application for adjustment of status. Petitions by U.S. citizens on behalf of spouses, parents and minor children are considered as immediate relatives and visas are immediately available. In the last couple of months, the Visa Bulletin under the F2A visa category which covers petitions by green card holders for their minor children and spouses is reflecting a “current” visa availability. Filipinos who are green card holder petitioner’s in certain circumstances may also file simultaneous I-130 petition and I-485 adjustment of status under the F2A visa category.

Claire was petitioned by her mother under the F1B visa category. Her mother is a U.S. citizen who waited for more than 10 years before Claire was able to immigrate to the U.S. under the F1B visa petition. Claire has a minor child, Jason, but was not married to Nico, the father of her child.

When Claire immigrated in 2018 to the United States, she was able to take her minor child Jason with her. But Nico was left behind in Manila. Recently, Nico arrived in the United States on a student visa (F1), he is taking up Masteral Degree related to his career. Claire and Nico recently got married and Claire filed a petition for Nico under the F2A visa category (spouse of a green card holder) on December 1, 2019.

Nico regularly follows and reads the Visa Bulletin issued by the Department of State (DOS) to determine when his visa may become available. He noticed that for the months of F2A, the Final Chart on the Visa Bulletin shows that the F2A has the letter “C” on it. But the Filing Chart shows a 2009 priority date. What does the “C” status on the F2A category mean for Nico? Can Claire now file for his petition and simultaneously adjust his status?

Understanding the Two Charts on the Visa Bulletin

The monthly Department of State Visa Bulletin has two different charts. The DOS will post two charts per visa preference category. The charts are: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply).

According to the recently released November 26, 2019 policy guidance, when USCIS determines there are immigrant visas available for the filing of additional adjustment of status applications, generally, the Dates for Filing Applications chart will be used to determine when to file an adjustment of status application with USCIS. Otherwise, if the priority is current as indicated on the Application Final Action Dates chart, then the final action date chart must be used to determine when to file an adjustment of status application with USCIS.

This means that despite a cut-off date on Filing Chart (second chart), if the Final Action chart (first chart) shows a “C” or a current priority date for a visa category, the application for adjustment of status may be filed immediately for that specific month.

Going back to the case of Nico, who is the beneficiary of an F2A petition, since the Final Action chart indicates a C (or a current priority date), he may now file for an adjustment of status. This is because the C indicates that a visa is available for the month of December 2019. However, unlike immediate relative petitions of U.S. citizens, unless there is 245(i) eligibility, beneficiaries of F2A petitions must be in lawful status to be able to file for adjustment of status.

(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 this website tancinco.weareph.com/old)

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USCIS Proposes to Adjust Fees to Meet Operational Needs

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WASHINGTON – The Department of Homeland Security will publish a notice of proposed rule-making in the Federal Register to adjust the U.S. Citizenship and Immigration Services Immigration Examinations Fee Account fee schedule.

Fees collected and deposited into the IEFA fund nearly 96% of USCIS’ budget. Unlike most government agencies, USCIS is fee-funded. Federal law requires USCIS to conduct biennial fee reviews and recommend necessary fee adjustments to ensure recovery of the full cost of administering the nation’s immigration laws, adjudicating applications and petitions, and providing the necessary infrastructure to support those activities.

“USCIS is required to examine incoming and outgoing expenditures, just like a business, and make adjustments based on that analysis. This proposed adjustment in fees would ensure more applicants cover the true cost of their applications and minimizes subsidies from an already over-extended system,” said Ken Cuccinelli, acting director of USCIS. “Furthermore, the adjudication of immigration applications and petitions requires in-depth screening, incurring costs that must be covered by the agency, and this proposal accounts for our operational needs and better aligns our fee schedule with the costs of processing each request.”

The rule proposes adjusting USCIS IEFA fee schedules by a weighted average increase of 21% to ensure full cost recovery. Current fees would leave the agency underfunded by approximately $1.3 billion per year.

The proposed fee rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners, and beneficiaries.
USCIS last updated its fee structure in FY 2017, by a weighted average increase of 21%.

For more information on USCIS and its programs, please visit uscis.gov or follow on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), Facebook (/uscis), and LinkedIn (/uscis).

[Release Date: Nov. 8, 2019]

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

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

The USCIS

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

The U.S. Embassy

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

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

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

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

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

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

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

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

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

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

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

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through this website tancinco.weareph.com/old)