Tag: uscis

Categories
Updates

Effect of Shutdown On Immigration-Related Programs & Applications

Share this:

For three weeks now, a partial government shutdown is still in effect. What is the impact of this shutdown on immigration related programs?

A. Court Hearings of Non-citizens in Removal Proceedings

With 800,000 cases pending before immigration courts nationwide, the partial shutdown only worsens the backlog. At the moment, the immigration courts under the Department of Justice’s Executive Office on Immigration Review (EOIR) are not hearing cases of non-detained individuals and their hearing if scheduled during the shutdown will be reset for a later date. Individuals who are in detention will proceed with their scheduled hearings.

B. USCIS Petitions, Applications and Interviews

Most family and employment-based petitions, applications for naturalization, adjustments of status and other applications are accepted by the U.S. Citizenship and Immigration Services (USCIS). Unlike other federal agencies, USCIS is a fee-funded agency and is open for business despite the federal budget issues. It will remain open and individuals seeking immigration benefits must attend interviews and appointments as scheduled. The only programs that are suspended during the shutdown are the following:

  1. EB5 Immigrant Investor Regional Center Program;
  2. E-Verify;
  3. Conrad 30 Waiver Program for J1 medical doctors; and the
  4. Non-minister religious workers petitions.

C. Consular Processing with the National Visa Center and U.S. Embassy

Those with approved petitions and individuals whose visas are available for processing are not affected by the shutdown. The Department of State issued an announcement on December 22, 2018 stating that all visa services in the United States and at U.S. Embassies/Consulates overseas will continue during the partial shutdown.

D. Application for Temporary and Permanent Visas at the U.S. Embassy

Visa operations are fee-funded so the U.S. Embassies will continue functioning despite the shutdown. Those applying for visas and who have scheduled interviews must attend their scheduled appointments for visa issuance.

E. U.S.Passport Applications

For travelers whose passports are expiring or first time applicants, the Department of State announced that their passport offices are open to receive applications. The National Passport Information Center still accepts telephone calls and inquiries from the public.

F. ICE Enforcement and Removal

The ICE remain operational during a government shutdown. According to ICE Spokeswoman Gillian Christensen, ICE is deemed a law enforcement necessary for the safety of life and protection of property. This mean that ICE may still enforce a removal orders or may conduct raids as it deems necessary. There are 15,254 ICE employees who are working without pay because of the shutdown.

G. CBP and those Entering the U.S.

CBP agency is considered “essential” and so ports of entry will be open. CBP officers will remain on duty but will not be paid during the shutdown.

The information above is obtained from the different respective federal agencies’ public notices regarding the effect of the current shutdown. With the bi-partisan politics and opposing views on immigration, the shutdown may continue for a while. Recent studies show that majority of Americans have always been opposed to a border wall. But if the government is reopened, hopefully it will happen without a border wall funding since there is no imminent threat to national security to substantiate the significant cost being requested by President Trump.

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

Categories
Updates

Philippines Ranks Second in List of Countries with Most Backlogged Petitions

Share this:

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

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

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

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

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

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

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

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

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

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

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

Categories
Updates

New NTA Policy Fully Implemented: Non-U.S. Citizens Whose USCIS Applications are Denied May Risk Deportation

Share this:

On October 1, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced the implementation of its New Notice to Appear (NTA) policy that will have an impact on immigrants with denied applications for benefits. On November 8, 2018, an expansion of the list of applications and petitions affected by this new policy was announced by USCIS and most of them are humanitarian in nature.

WHAT IS AN NTA ?
NTA stands for Notice to Appear which refers to the charging document that is issued to foreign nationals who are deemed “removable” or deportable from the United States. When an individual receives a notice to appear, it means that he is put in removal proceedings so he should appear before an Immigration Judge. During the hearing, he is expected to defend himself from deportation by raising appropriate relief/defenses/waivers that may be available to avoid his deportation or to allow him to remain in the United States.

WHAT IS THE SIGNIFICANCE OF THIS NEW NTA POLICY TO NON-U.S. CITIZENS APPLYING FOR IMMIGRATION BENEFITS?
USCIS began issuing notices to appear on October 1, 2018 to non U.S. citizens whose applications for immigration benefits are denied. More specifically this applies to those with denied applications for adjustment of status and applications to extend or change non-immigrant status. Before October 1, 2018, those with denied applications are not affected by this new NTA policy and may not necessarily be put in removal proceedings.

In its recent press release, starting Nov. 19, 2018, USCIS may issue NTAs based on denials of the following humanitarian type of applications/petitions:

  1. I-914/I-914A, Applications for T Nonimmigrant Status, and
  2. Petitions for Forms I-918/I-918A, Petitions for U Nonimmigrant Status;
  3. I-360 Petition for Amerasian, Widow(er);
  4. I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant,
  5. Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile petitions); and
  6. I-730 Refugee/Asylee Relative Petition, when the beneficiary is present in the US, as well as Form I-485, Application to Register Permanent Residence or Adjustment of Status, filed with these underlying form types.

Note that USCIS not ICE will issue the notice to appear when there is a denial practically compelling these individuals into a court system and making it difficult for them to depart the United States while their removal case is pending.

CAN YOU CITE EXAMPLES OF THOSE WHO MAY POTENTIALLY BE AFFECTED?
An individual in possession of a H1B visa, or a student visa holder filing for an extension of status, and the application for extension of status is denied by the USCIS is an example. Upon denial, USCIS may now put this individual in removal/deportation proceedings. Another example is a spouse of a U.S. citizen filing for adjustment of status; if denied for any reason, the spouse applicant for adjustment of status may be put in removal proceedings. Also, beginning November 19, 2018, those whose U, T or VAWA (Violence Against Women’s Act) self petitions are denied may be issued NTAs.

WHAT CAN INDIVIDUALS WHO INTEND TO FILE FOR APPLICATIONS FOR IMMIGRATION BENEFITS DO TO AVOID RECEIVING NTAs?
This new NTA policy has harsh effects on applicants. The best step to take is to make sure that whatever application is filed, all eligibility requirements are met and all possible issues which may be grounds for denials are addressed in the application. I also understand that many file applications on their own but these days, it will be best to exercise due diligence by consulting with trusted legal professionals before filing an immigration application. In the worse case scenario that an NTA is received, do not depart immediately. If you depart after receiving an NTA without justifiable reason, an order of deportation in absentia may be issued and it will have a serious consequential effect on one’s ability to return to the United States in the future.

(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.)

Categories
Updates

Update on DACA: Has the DACA Program Ended Yet?

Share this:

On November 8, 2018, the Ninth Circuit Court of Appeals ruled that the rescission of the DACA program by the Trump Administration is arbitrary and capricious. What does this ruling mean to DACA applicants?

The Deferred Action on Childhood Arrivals, commonly referred as DACA, begun in 2012 allowing non-citizens who entered the United States as children, who have clean criminal records, and who meet certain eligibility requirements – to apply for two-year renewable periods of deferred action. Deferred action is a revocable decision by the government not to deport an otherwise removable person from the country. Those granted deferred action are issued an employment authorization document for limited periods of time.

Josh is a Filipino DACA recipient. He entered the United States when he was only 9 years old as a visitor visa holder. His parents are still without legal status but Josh was able to get DACA protection in 2016. He is now gainfully employed in a financial institution and has been a good citizen. When he was about to renew his DACA employment authorization, Joshua was told that he only has a small window to benefit from the DACA program as a result of the Trump Administration’s announcement in September 2017, that the DACA program is to be terminated in phases.

Lawsuits were filed in Northern District of California after the Trump announcement of the DACA rescission in September 2017; in January 2018, the District Court ruled that the DACA rescission was unlawful. Hence, a resulting nationwide preliminary injunction was issued to hold off Trump’s plan to phase out the DACA program.

The Trump administration continued to argue for the validity of the DACA termination arguing its case with the Court of Appeals. The primary bases of the government in stating that the DACA program is illegal was that DACA was “effectuated without proper statutory authority and is unconstitutional.” Without waiting for a decision from the Court Appeals the government filed in November 5, 2018 a petition for writ of certiorari before the U.S. Supreme Court arguing on the legality of the DACA rescission.

On November 8, 2018, three days after filing the petition before the Supreme Court, the Ninth Court of Appeals ruled that the DACA rescission was unlawful, arbitrary and capricious. It also affirms the District Court’s issuance of a preliminary injunction and thus holding off to the termination of the DACA program.

As a result of the affirmation of the preliminary injunction, the U.S. Citizenship and Immigration Services (USCIS) will continue to receive and adjudicate renewal of DACA applications with the following exceptions:

  1. That new applications from applicants who have never before received deferred action need not be processed;
  2. That the advance parole feature need not be continued for the time being for anyone; and
  3. That DHS may take administrative steps to make sure fair discretion is exercised on an individualized basis for each renewal application.

Hence, in the case of Josh above, and based on recent developments on DACA, he can still be permitted to renew his DACA protection and seek renewal of his employment authorization document.

The fate of the DACA program is now with the U.S. Supreme Court. With the current structure of the court and the recent appointment of Justice Brett Kavanaugh, several of us immigration advocates are quite apprehensive about the future of the DACA program. Meanwhile, considering that it has not ended, DACA recipients must continue to avail of its benefit.

In concluding the panel’s recent decision, Justice Wardlaw of the Ninth Circuit Court of Appeals emphasized how important it is for the government to be “democratically accountable” to the public in the exercise of its discretion in the enforcement of immigration law. It stated in part, “whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.”

(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 through facebook.com/tancincolaw.)

Categories
Updates

Who Will Be Affected by Trump’s Proposed Public Charge Rules?

Share this:

On September 22, 2018, the U.S. Department of Homeland Security published on its website a 447 page proposal called the “Inadmissibility on Public Charge Grounds”. This proposal would have the effect of denying green cards to immigrants who have legally availed public benefits. Obviously, this is part of Trump administration’s overall trend of cracking down on both legal and illegal immigration.

Most non-immigrants and unauthorized immigrants in the United States are not eligible for most public benefits. But for those who find themselves availing of food stamps, housing vouchers and Medicaid, they may face risk to their future immigrant status if the proposal is fully implemented.

What is this new proposal about?

This new proposal refers to a “public charge” finding as a ground for inadmissibility or basis for denial of visas. An individual is considered a public charge if s/he is dependent primarily on government assistance for her/his subsistence.

Currently the public charge rule is that a person who is dependent primarily on welfare or government assistance will be denied a visa if s/he availed of monetary public benefits such as (1) Supplemental Security Income or SSI for the aged, blind and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance, and (3) State and local cash assistance programs known as General Assistance (GA).

Under the recent proposal, the definition of public benefits in determining whether one is a public charge has been expanded. The additional public benefits are Medicaid (with limited exceptions for medicaid benefits paid for an “emergency medical condition,” and for certain disability services related to education), Medicare part D low income subsidy, the Supplemental Nutrition Assistance Program (SNAP, or Food Stamps), institutionalization for long-term care at government expense, Section 8 housing choice voucher program, Section 8 project-based rental assistance, and public housing.

In addition, the proposal added the totality of circumstances test in determining whether one is a public charge. This means that USCIS examiner or consular officers may now examine varying factors that may lead them to the conclusion that the applicant for visa is likely to become a public charge. These factors include applicant’s age, health, family status, assets, resources, and financial status, and education and skills.

Who are affected by this proposal?

Those affected are those (1) non-immigrants present in the United States who are applicants for adjustment of status; (2) those applying for visas at consular offices abroad and (3) those entering the United States who are found to be receiving public benefits within 5 years of of being a lawful residents or in green card status.

Will green card holders applying for U.S. citizenship be affected?

Generally, a finding of public charge is not a ground for denial of U.S. citizenship and so a green card holder who is an applicant for naturalization is not affected by the proposal. The issue of public charge will only matter and result in denial of U.S. citizenship if during the examination on the naturalization application, it is determined that the green card holder had engaged in fraud and misrepresentation in obtaining public benefits.

Should prospective immigrants withdraw from receiving public assistance?

Several community immigrant advocates had opposed the new proposals as being discriminatory against low income immigrants who may happen to receive some benefits because of sudden illness or they have unexpectedly lost their jobs due to economic downturns or changes in their company. In most cases receipt of benefits is only temporary and simply served as a basic economic safety nets to provide economic stability until the individuals becomes self sufficient again. To take this safety net against them in their future application for green cards is cruel and unjust.

A person who is prospectively affected by this proposal may be compelled to choose between risking his future immigration status and meeting his basic need. But it is premature to make a decision on whether those who are receiving public assistance should start withdrawing from these government programs. Although in anticipation of the implementation of the proposals, several public benefit recipients already stopped receiving public benefits at the expense of their health and safety. This proposal becomes a final rule 60 days after it is published with the Federal Register. It must be clear that the proposal is not yet a final rule. It was just recently published on the DHS website. Once it is published with the Federal Register the public will be afforded 60 days to comment and oppose these restrictive proposals. There is still an opportunity to completely negate the impact of this proposal.

(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)

Categories
Updates

More Immigration Petitions May Be Denied Outright Under New USCIS Policy

Share this:

On September 11, 2018, the U.S. Citizenship and Immigration Services started implementing a new policy with regard to the “Issuance of Certain RFEs and NOIDs”. The new Policy Memorandum was published on July 13, 2018 and is identified as PM-602-0163. Under this policy, USCIS examiners may deny an application, petition, or request without first issuing a Request for Evidence (RFE) or a Notice of Intent to Deny (NOID) if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

This new policy rescinded the long time rule enacted under the USCIS 2013 Policy Memo which required USCIS examiners to issue RFEs or Notices of Intent to Deny (NOID) if it appears that the petition is approvable upon submission of additional documents. The reason given by USCIS for the issuance of this policy is to discourage frivolous or substantially incomplete filings used as “placeholder” filings and encourage applicants, petitions and requestors to be diligent in collecting and submitting requested evidence. Interestingly, the USCIS states that it is not intended to penalize filers of innocent mistakes or misunderstanding of evidentiary requirements. But implementing the policy as written in the new Policy Memorandum will have the effect of penalizing filers of “innocent mistakes” by depriving them of opportunity to correct the error. How is this new policy applied?

James, a U.S. citizen filed a petition for his spouse Jane. He submitted the accomplished forms I-130, G325s with supporting documents. When his petition is being examined, James appear to have had marriages and divorces prior to marrying Jane. He did not submit copies of his divorce decrees.

Before September 11, 2018, the U.S.Citizenship and Immigration Services will send a Request for Evidence providing James an opportunity to prove that he was indeed divorced by submitting certified copies of divorce judgment. After USCIS receives the requested documents, the petition will be approved. But with the new policy effective September 11, 2018, failure to show eligibility on initial filing will result in outright denial without an opportunity to correct it through an RFE. This means without proof of eligibility, the petition may be denied right away based on the new guidance. USCIS mentions in the published guidance that if the regulations, the statute or form instructions require the submission of an official document or other form of evidence establishing eligibility at the time of filing and there is no submission, the petition may be denied.

Immigration Benefits Affected

Petitioners and applicants who file immigration benefit applications with USCIS will be affected by this new policy. This includes the following applications and petitions filed after September 11, 2018: naturalization applications, all family based petitions, temporary work visas such as H1Bs, Os and other business related visas, immigrant petitions and adjustment of status under any preference category, or the Violence Against Women Act.

The new policy will make it easier for USCIS to deny petitions and applications. If the request for immigration benefit is denied under the new policy, a new application or petition may be re-filed with new supporting documents but they will be penalized with paying a new filing fee.

In June 28, 2018, there was another USCIS proposed policy that mandates USCIS to put in removal proceedings those individuals with denied applications and petitions if the effect of the denial would render the individual applicant or beneficiary to be in unlawful status. This will have a devastating effect on significant number of applicants or beneficiaries with denied petitions. Also, this will result in the unnecessary use of of government resources to put them in removal proceedings because most of these individuals would have their immigration benefits granted anyway if provided with the right opportunity to do so.

To avoid the harsh consequence of this new policy, one must be very diligent in preparing USCIS petitions and applications. Consulting with legal professionals before filing will be a prudent step in order to ensure that they are eligible for the benefits being applied for and that they have approvable applications and petitions.

(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 1-888-930-0808; email at law@tancinco.com, www.facebook.com/tancincolaw or visit website at tancinco.weareph.com/old.)

Categories
Updates

3 Categories of Immigrants Who Risk Being Stripped of U.S. Citizenship

Share this:

The U.S. Department of Homeland Security announced in June 2018 the establishment of a Denaturalization Task Force within the U.S. Citizenship and Immigration Services (USCIS). The new USCIS office will focus on investigating cases of naturalized U.S. citizens and determine whether they will be recommended for denaturalization.

From among the 20 million naturalized U.S. citizens, who are at risk of being stripped of their U.S. Citizenship?

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.

In 2008, Operation Janus was launched by the Department of Homeland Security and identified 854 individuals who had prior removal order, criminal convictions who were able to naturalize. These individuals’ fingerprint records were missing from the centralized DHS database. Now the current administration is planning to refer 1,600 more cases to the Department of Justice for denaturalization.

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:

  • 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 occurred before and during the naturalization process.
  • 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.
  • 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 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.

These days the Immigration and Customs Enforcement (ICE) is not the only agency in charge of immigration enforcement. The USCIS, with the creation of the Denaturalization Task Force, is now also involved indirectly in enforcement matters. Likewise, 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 categories 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. If there is a possibility of denaturalization, prepare yourself to defend yourself in the federal court and, in the worst 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 or facebook.com/tancincolaw)

Categories
Updates

Applicants With ‘USCIS Denials’ May Be Put In Removal Proceedings

Share this:

A person who is unlawfully present after his application, petition or request for an immigration benefit is denied may find himself in removal proceedings and eventually may possibly be deported. The U.S. Citizenship and Immigration Services (USCIS) released last week their two new policies with regard to the handling of denied applications and petitions for those seeking immigration benefits. These policy memos (PM-602-0050-1 and PM-602-0161) are referred as updated guidance to referring cases to ICE and issuance of Notices to Appear.

How are these new policy memos going to be implemented? What impact will these have on those seeking immigration benefits?

Paul entered the United States using a visitor visa. He sought an extension of his stay by filing an Application to Extend Status (I-539) because he was invited to speak in a conference on a date which was beyond his authorized stay. Paul continued to reside on a visitor visa in the U.S. even after his authorized period of stay hoping that his application will be approved and he will not lose status. Unfortunately, USCIS denied his application. Under the new policies, Paul will be put in removal proceedings because he is now in unlawful status.

Those seeking extensions of H1B visas and whose requests were denied may also suffer the same fate as Paul. Under the new policy, USCIS may issue NTAs and put those with denied petitions in removal proceedings.

There are thousands of applications and petitions filed with the USCIS by those who are present in the United States. They may be seeking to avail of some immigration benefits like an extension of non-immigrant stay, change of status, extension of working visas or adjustment of status from non-immigrant status to that of a lawful permanent resident. Most of the time these applicants, if they meet the eligibility requirements are approved and issued the requested valid status. However, with the recent policies, in the event the application or petition is denied, USCIS may issue a Notice to Appear and put the applicant in removal proceedings.

Other than cases of those unlawfully present whose application or petition are denied, the following categories of cases are also impacted by the new policies:

  • Cases where fraud or misrepresentation is substantiated and/or where an applicant abused any program related to the receipt of public benefit
  • Criminal cases where an applicant is convicted or charged with a criminal offense which is a ground of removability
  • Cases in which N400 or an Application for Naturalization is denied based on good moral ground or a criminal offense

These USCIS new policies will result in more cases being filed in removal courts. With more than 700,000 cases pending in immigration courts nationwide, additional filings of cases based on these USCIS policies will only make the backlog severe. The ICE is not the only agency involved in enforcement of immigration law. The USCIS, which used to be the agency that handles immigration benefits, has now been turned into an enforcement agency as well. With this additional role, the delay in adjudication of petitions is expected to happen impacting thousands of adjustment of status and naturalization applications.

With the ever-changing policies evolving at a very fast pace, it would be prudent for a prospective petitioner or applicant to have a serious discussion about his case with a trusted legal counsel. One must be able to assess the varying legal options that may be available to attain the same result without risking removal. Or perhaps one must have his case examined on whether it is even timely or worth pursuing an application or a petition with the USCIS. During these critical times and when it comes to immigration, there is no substitute for due diligence.

(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.)

Categories
Updates

USCIS to Recall Incorrectly Dated Green Cards

Share this:

On May 14, 2018, USCIS will begin recalling approximately 8,543 Permanent Resident Cards (also known as Green Cards) due to a production error. The Green Cards were for approved Form I-751, Petition to Remove Conditions of Residence for spouses of U.S. citizens. The cards were printed with an incorrect “Resident Since” date and mailed between February and April 2018.

USCIS will send notices to individuals who received the incorrect Green Cards and to their attorneys of record, if they have one. The affected individuals should return their incorrect Green Card to USCIS in the provided pre-paid envelope within 20 days of receiving the notice. They may also return their cards to USCIS field offices. USCIS will send replacement Green Cards within 15 days of receiving the incorrect card.

The recall does not affect these Green Card holders’ status as lawful permanent residents. If affected individuals need to travel internationally or prove their lawful permanent residence while they wait for a replacement card, they may contact the USCIS Contact Center at 800-375-5283 to determine if they need additional proof.

Spouses of U.S. citizens may apply for naturalization after three years of permanent residency and must meet other requirements. The incorrect date on these cards could lead applicants to wait longer than necessary to apply to become U.S. citizens.