Tag: uscis

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Updates

Latest Court Ruling Orders USCIS to Accept New DACA Applications

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After President Trump announced the termination of the Deferred Action for Childhood Arrivals (DACA) on September 5, 2017, several lawsuits were filed questioning the validity of the termination. Two court injunctions were already issued by the federal courts in San Francisco and New York ordering the USCIS to continue accepting renewals for the DACA protection. On April 26, 2018, another federal court in the District Court of Columbia also issued an injunction against the termination of the DACA program. With the latest injunction the court ordered USCIS to also accept new DACA applications.

Who will benefit from this latest court ruling?

Joshua entered the United States when he was 7 years old. When the DACA was announced in 2012, Joshua was only 10 years old. When Joshua turned 15 in December 2017, he was not allowed to apply for a DACA application. No new DACA applications were accepted after the announcement of the termination of the DACA protection in September 2017. This is the reason why Joshua has not applied for the DACA protection. Last week, Joshua heard about this new court ruling and wants to apply for the DACA protection and for an employment authorization card. What can he do?

Requirements for DACA

DACA was available to any undocumented young immigrant who:

  1. came to the United States when she was under the age of sixteen;
  2. had lived in the United States continuously since at least June 15, 2007;
  3. was enrolled in school or had graduated from high school or been honorably discharged from the military;
  4. had not been convicted of certain criminal offenses and posed no threat to national security or public safety; and
  5. was under the age of thirty. Young immigrants who are out of status, who met these criteria were eligible for renewable, two-year grants of “deferred action” on their removal from the United States.

Termination of DACA and the Lawsuits

On September 5, 2017, then-Acting Secretary of Homeland Security Elaine C. Duke issued a five-page memorandum rescinding DACA program. USCIS would adjudicate any properly filed DACA applications that were pending as of September 5, 2017, as well as any new applications for the renewal of DACA benefits that were filed on or before October 5, 2017 by persons whose benefits were set to expire on or before March 5, 2018.

On September 8, 2017, the University of California filed a complaint challenging the rescission of the DACA program and asking the court to enjoin the implementation of the rescission. On January 9, 2018, the district court issued an order directing the government to partially maintain the DACA program. As a result, the USCIS issued guidance that they are accepting renewal applications.

On April 24, 2018, the U.S. District Court for the District of Columbia held that DHS’s decision to rescind DACA was “arbitrary and capricious” and vacated the termination of the program. The court ordered DHS to accept and process new DACA applications, as well as renewal DACA applications – however, it stayed its order for 90 days to give the government a chance to respond. The decision of the court differed from previous court rulings because it would affect new applications – i.e. initial applications from individuals who have never applied for DACA previously but who are eligible to apply.

After 90 days, Joshua will be able to file for a new DACA application as per order of the U.S. District Court by proving that he meets all the above eligibility requirements. While this is a positive development, DACA is only a temporary program and its future is very uncertain. It would be best if there will be a permanent path to citizenship for the Dreamers. At the moment, there are several bills before the U.S. Congress addressing this issue. The most appropriate bill that must be passed into law is the Dream Act (HR 3440 and S.1615). If passed into law, it will provide a path to naturalization to Dreamers after 5 years in conditional permanent resident status.

(Atty. Lourdes S. Tancinco is a San Francisco-based immigration lawyer and immigrant’s rights advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

9 Frequently Asked Questions on DACA Renewals

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Last week a Federal District Court Judge in San Francisco issued a nationwide injunction that temporarily blocks the phase-out of a program protecting the Dreamers. The preliminary injunction issued on January 9, 2018 by U.S. District Judge William Alsup remains in effect during litigation in five consolidated lawsuits that challenge the government’s decision to wind down the program known as Deferred Action for Childhood Arrivals (DACA). The following are frequently asked questions about this injunction:

1.What is the impact of this injunction on the DACA program?

The preliminary injunction order means that the DACA program will be maintained temporarily during the litigation on the same terms and conditions as were in effect before the rescission on September 5, 2017. Also, certain DACA beneficiaries will be able renew their work permits and protections with a few exceptions.

2. Who can renew their DACA protection and work permits?

Dreamers who currently have DACA and are eligible to renew may request renewal by filing Form I-821D, Form I-765, and Form I765 Worksheet, with the appropriate fee or approved fee exemption request, at the USCIS designated filing location, and in accordance with the form instructions.

3. Can Dreamers with expired DACA beginning September 5, 2016 until Sept 5, 2017 apply for renewal?

When the DACA was terminated on September 5, 2017, the DACA protection that were then expiring were only given until October 5, 2017 to renew. Significant number of these DACA recipients failed to renew. With this injunction order, USCIS issued a guidance clearly stating that they may now renew their DACA work permits and protection.

4. Can Dreamers whose DACA expired before September 5, 2016 still apply for renewal?

No. Those whose DACA protection and work permit expired BEFORE September 5, 2016 may not renew. However, they will be allowed to re-file a new DACA application under the USCIS guidance.

5. What about Dreamers whose DACA protection and work permit was terminated by the USCIS, can they now file for renewal?

No. But like in #4 question, they will be allowed to re-file a new DACA application. USCIS asks applications to list down the date their prior DACA was terminated.

6. How soon can the Dreamers apply for the DACA renewal ?

Dreamers who are eligible for renewal must file as soon as possible given the fact that the injunction is temporary in nature. Under the instructions for Form I-821D and the DACA FAQs on USCIS’s website, applicants were instructed to file for renewal 150 to 120 days in advance of the expiration of their current DACA grant. It is not yet clear from USCIS if they will reject those filed more than 150 days given that the injunction order is only temporary in nature and ancillary to the litigation is pending. Once there is clarification, we will inform readers of future developments.

7. What about DACA beneficiaries who wants to apply for the first time, will they be permitted to file their application now?

The USCIS guidance clearly indicates that those who have not filed DACA applications in the past may not file for new applications now. This means that the injunction order extends only to those who had prior grant of DACA and whose DACA work permit and protection expired or were terminated.

8. Will DACA beneficiaries be able to apply for advance parole?

The injunction order does not cover advance parole and USCIS is not ordered to adjudicate any advance parole. Hence, USCIS will not accept applications for advance parole from DACA beneficiaries.

9. Given that the court injunction is only temporary in nature, is there a possibility that the DACA program will become law anytime soon?

President Trump met with lawmakers last week to discuss about the future of DACA and other immigration issues. There seemed to be no agreement made on the future of the DACA program. There is currently a political pressure to include DACA as a legislation into the spending bill which hopefully will happen before January 18, 2018.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw,  or 1 888 930 0808)

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Updates

What DACA Recipients Should Know Now And The Rights They Have

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On September 5, 2017, the current Trump administration rescinded the program created in 2012 by former President Obama. According to the Migration Policy Institute, there are 22,000 young Filipino unauthorized children who are eligible for DACA but only 27 percent, or nearly 6,000, applied for it with the U.S. Citizenship and Immigration Services.

Not too many Filipinos filed for DACA compared with other minority immigrant population due to several factors, including fear of deportation and hesitation to submit critical information to the U.S. Department of Homeland Security. Most also are apprehensive about possible repercussions on their undocumented parents.

The term “deferred action” in immigration law context refers to the discretionary act, through the recommendation of the Department of Homeland Security, not to prosecute or deport a noncitizen. It is an administrative choice to give some cases lower priority and is not an entitlement. So if deferred action no longer exists for the DACA recipients, they will lose their protection from removal/deportation.

The way DACA was rescinded came with three fundamental elements: first, there is a 6-month period before actual termination to allow certain DACA recipients to renew the their employment authorization for another 2 years or until 2019; secondly, the renewal period is only one month, with October 5, 2017 as the deadline to file for DACA renewal; lastly, although DACA recipients are low in priority for deportation it is not a guarantee that they will not be put in removal proceedings.

For these reasons, the following tips are for all DACA recipients:

5 Things to Know About DACA Now

1. If You Do Not Have DACA or a DACA Application Pending.

DACA program has been terminated beginning September 5, 2017 and new applications are no longer being accepted by USCIS.

2. If You Have DACA That Expires on or Before March 5, 2018.

If you have DACA and a work permit that expires on or before March 5, 2018, you can apply for a 2-year renewal, but your application must be received on or before October 5, 2017.

3. If You Have DACA That Expires After March 5, 2018.

There is only a 6-month window provided from September 5, 2017 to March 5, 2018. If your DACA and work permit expire after March 5, 2018, you are no longer eligible for an extension. This means that your DACA, work authorization, and protection from deportation will expire on the date shown on your DACA approval notice and work permit.

4. If You Have a DACA Application Pending.

Before the announcement on September 5, 2017, there are certain DACA applications that were filed for extensions. If you have a DACA application that was received at USCIS on or before September 5, 2017, your application will continue to be processed.

5. If You Have DACA and a Valid Advance Parole Travel Document.

Although there are advance paroles that are still valid for travel, given the recent rescission, DACA recipients should desist from traveling unless it is for urgent reason. The Customs and Border Protection (CBP) agents may still refuse entry to you at their discretion.

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5 Tips on What Not To Do

1.Do not lose hope.

While you are not American at birth, you are very much an American in heart and mind by assimilation. You have a lot to give to this country, so hang in there as compassionate members of your community support and work hard to advocate for your protection before the U.S Congress.

2. Do not get yourself in trouble with the law.

Remember, do not commit any unlawful act that will give ICE the opportunity to use it against you. Stay out of trouble, as you always do.

3. Do not give up on other options.

Explore other legal options that may be applicable to you. Who knows, there might be an available family or employment petition that you may be eligible for. Talk to a professional legal counsel.

4. Do not be too trusting.

Do not divulge personal information about your DACA case to people you don’t know.

Talk only to people you trust. Since you are vulnerable at this point, there may be people who are tempted to take advantage of you. Be careful on who you trust.

5. Do not give up your rights.

Understand your rights, and know how to assert them when ICE comes knocking at your door. Even if you are without legal authorization, you still have rights under the law.

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5 Tips In Case of ICE Arrest

DACA applications submitted to U.S. Department of Homeland Security contain personal information that may be used against the applicants if this information is submitted to ICE for enforcement. Although, the Trump administration stated that DACA recipients are low in priority for enforcement, an understanding of one’s rights during an encounter with an ICE agent is important. The following are tips about the of DACA recipients and how they can protect themselves.

1. Right to Privacy: Do Not Open Your Doors

ICE cannot enter your home without a warrant signed by a judge. Ask the ICE agent to slide the signed warrant under the door. Without a properly signed warrant, you should not allow them inside your home.

2. Right to Remain Silent

Tell the ICE agent that you are exercising this right: “I am exercising my fifth amendment right and choose to remain silent until I speak to my attorney.”

3. Right to Counsel

Do not sign any document without first speaking to an attorney.

4. Right to Contact Your Consulate

While DACA recipients have no contact with their homeland, consulates of countries of their birth, like Philippine Consulates, may be able provide assistance in limited ways.

5. Right to a Hearing

In case ICE apprehends and detains you, you have a due process right to a hearing and you should not to be immediately returned to your country of birth. Call your legal counsel.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She is the principal at the Tancinco Law Offices and may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

*This article originally appeared in Positively Filipino Magazine. 

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Updates

End of DACA puts at risk up to 6,000 young Filipino recipients

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There are approximately 22,000 young Filipino immigrants who are eligible to apply for benefits under the Deferred Action for Childhood Arrivals. Only 27 percent of those eligible applied, or approximately 6,000. The rest of these young Filipino immigrants continue to wait for permanent solution to their status. With the announcement that President Donald Trump is ending the DACA program will those who took advantage of the DACA program be arrested and eventually be deported?

Unfortunately, those who are just in the process of filing their DACA applications for the first time, will no longer be able to do so. This will affect those who just became eligible to apply for DACA and those who took time or postponed the filing of their DACA applications despite the fact that they were eligible. After September 5, 2017, USCIS will no longer accept new DACA applications.

Future of DACA recipients

There is a short window afforded to existing DACA recipients to renew their expiring DACA employment authorization documents (EAD) if these EADs are expiring between September 5, 2017 and March 5, 2018. The request for renewal and application for employment authorization document must be received by U.S. Citizenship and Immigration Services no later than October 5, 2017. This is an important deadline because USCIS will reject all requests to renew ACA and associated applications for EADs filed after October 5, 2017.

Once the application for renewal is adjudicated, USCIS is expected to renew it for another two year period or until 2019. Unfortunately, for those whose DACA benefits are expiring after March 5, 2018, once their employment authorization document expires, USCIS will no longer be able to accept and adjudicate their applications for renewal. This means that beginning March 6, 2018, there will be DACA recipients who will be deprived of their protected status and will be reverted to their unlawful status.

Will DACA recipients be deported?

It was clearly mentioned during the announcement by Attorney General Jeff Sessions that the DACA recipients are not considered priority for enforcement. While this may sound favorable, there is no guarantee that ICE will not issue Notices to Appear for removal hearings. The USCIS confirmed that it will not share information obtained through DACA applications with the ICE agents. However, it is important to note that unless ICE is requesting that information based on certain factors like national security, public safety and fraud, the information may still be shared for enforcement. It will still be best for this DACA recipients to be vigilant about their situation and to be familiar with their rights especially their rights to a hearing and their right to counsel.

Congressional action

Terminating the DACA program within 6 months will afford the U.S. Congress time to enact a law benefitting the DACA recipients. At present there are two bills pending, the Dream Act (S.1615) before the Senate and the American Hope Act (H.R.3591) before the House of Representatives.

If these bills are passed into law, it will provide permanent solutions to protect DACA recipients and give them a pathway to lawful status. These young immigrants will have to take steps to ensure that they are safe from removal.

We also encourage compassionate members of our community, who believe that DACA recipients deserve a chance to build their lives in the country they call home, to work together towards the passage of the Dream Act by contacting their representatives in Congress.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and immigrant’s right advocate. She may be reached at law@tancinco.com, facebook.com/tancincolaw, or 1 888 930 0808)

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Updates

Recent changes to the H1B visa program are still favorable

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The U.S. Citizenship and Immigration Services (USCIS) on November 18, 2016 published changes to the H1B program affecting highly skilled workers, and these changes took effect on January 17, 2017. Most of these changes affect those who already have H1B visas and have pending immigrant visa petitions with no available visas.

“Isabela” entered the United States on an H1B visa. She is an engineer who works on different development projects for her U.S. employer. Prior to sixth year H1B expiration, her U.S. employer was able to file a labor certification application and an immigrant visa petition. She has a priority date of 2015 on her immigrant visa petition and a visa is not yet available for Filipino nationals.

The visa bulletin for the month of February 2017 indicates that the visa priority date under the Philippines is 2011 and filing date priority date is 2013. Every year, Isabela’s employer files for a one-year extension of her H1B visa.

She heard about the changes in H1B program that took effect on January 17, 2017. Can she benefit from these changes? If she decides to leave her present employer, will she be able to use the prior approved immigrant visa if this already withdrawn by the employer? What options does she have?

No automatic revocation
In several cases where the employee decides to change employers, the first petitioning employer would take the adverse step of withdrawing the approved petition filed on behalf of an H1B visa holder. And in unfortunate cases, because of the lengthy wait for a priority date to become current, there are times where the petitioner’s business closes for valid reasons resulting in revocation of the immigrant visa petition.

With the recent amendment to the regulations, the USCIS will no longer treat an immigrant visa petition as automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business. This change applies to those whose petitions have been approved for 180 days or more. Hence, for some employers who may have malevolent plans of getting back at their employees for moving to another employer, there will no longer be an automatic revocation.

The USCIS set conditions for the non-automatic revocation to apply. The rule clearly states that as long as the approval has not been revoked for fraud, material misrepresentation, invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including (1) retention of priority dates; (2) job portability under INA §204(j) and (3) extensions of status under AC21 §§ 104(c) and 106(a) and (b).

Three-year extension after sixth year
Considering that immigrant visas are not readily available because of numerical limitations imposed by law, the H1B employee may request for a three-year extension instead of a the one-year increment. The extension request must show proof that the immigrant visa classification is over- subscribed, which is always the case for employment-based petitions (EB3) for nationals of Philippines. However, if the priority date is at least one-year current, the extension will only be for one year.

Besides the above changes in the highly skilled H1B visa program and the employment- based petitions, there are more changes that would benefit H1B visa holders. For Isabela and those similarly situated, the changes above are significantly critical especially to Filipinos who have to bear a lengthy wait before immigrant visas are made available.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)

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Updates

Will an undocumented person be ‘hassled’ on exit if he wants to leave US?

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There is never a day, since post-election 2016, that “immigration” is not mentioned in the daily news. Whether fear is created by uncertainty in the upcoming Trump administration or outright desperation resulting from the absence of an immigration reform law, a significant number whose status had expired have voluntarily departed for their homelands.

An immigrant from the San Francisco Bay Area sent me a letter regarding his friend who has been undocumented and who wants to leave the US:

Dear Atty. Lou:

A person was unfortunate in failing to obtain legal status through an employment petition is now tired of his staying here in the U.S. as an undocumented alien; so he has strongly decided to go home for good. He entered the U.S. as a visitor sometime in year 2000 and is now holding a valid passport in his name.

My questions are:
(1) What are the things he needs to do before or during his exit?
(2) Aside from his valid/unexpired Philippine passport in his name and a one-way plane ticket, are there any other documents he needs to prepare and have at hand to avoid hassle upon exit?
(3) Will he encounter problems/interrogations on his exit if he uses his current valid passport with no visa page?

Those who want to travel back to the Philippines after having made a firm decision to return home after several years of fruitless waiting for an opportunity to legalize, may do so with a valid unexpired Philippine passport. In some circumstances, an undocumented person may be issued a Philippine travel document by a Philippine Consulate General’s Office nearest his place of residence. This happens in cases of emergencies or when the individual is being removed from the country by the Department of Homeland Security. If there is still time to get a Philippine passport, it will still be appropriate to request for one and use it for traveling.

Generally, there is no need to inform the U.S. Citizenship and Immigration Services about the intended trip back to the homeland. The only time the USCIS should be notified is if the individual is availing of a voluntary departure relief in immigration court and has plans of returning to the US at a future time. Otherwise, there is no need to go through USCIS. Just go straight to the airport with the passport and one-way airline ticket.

The more serious concern is whether there will be trouble that may be encountered at the airport with the federal agents. My most common response to this is that there should be no problem because USCIS wants you to leave anyway as you have been in unlawful status and the federal agents will not stop you from doing so. However, there are times that a departing individual will be stopped from traveling at the airport. This happens when the individual is the subject of a pending investigation for a probable criminal offense, is a fugitive from justice or has a validly issued warrant of arrest.

For those who decide to depart but still have future plans of one day returning to the US, it is best to explore their options and not close all the doors to their possible return. Who knows, it may be different after four years.

(Atty. Lourdes S. Tancinco is a San Francisco CA based immigration attorney and may be reached at law@tancinco.com, tancinco.weareph.com/old , facebook/tancincolaw, or at 1 888 930 0808 or at 1 415 397 0808)

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Updates

DACA Dreamers win support from US solons, mayors

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SAN FRANCISCO — More than 750,000 DACA (Deferred Action for Childhood Arrivals) applicants have acquired approved employment authorization documents and are temporarily protected from removal.

But as of June 30, 2016, the U.S. Citizenship and Immigration Services reports that 7,941 approved DACA applications are from Filipino nationals who are now at risk of being deported if the Trump administration takes immediate action to revoke the DACA program.

“Jose” entered the United States when he was five years old. He does not remember the details of his family’s entry to the United States. He was not even aware that he was unlawfully in the U.S. until he applied for his driver’s license when he was 16 years old. He is now 25 years old and availed of the DACA program. When he applied for a job as a computer engineer in Silicon Valley, he was hired right away and has now been working for three years.

Realizing that President-elect Trump may take action on DACA after inauguration, he asked me about the risk of losing his employment authorization document and his state identification card. He was very emotional as he expressed his fear: “I do not want to be back to a situation where I have no legal document at all. Please tell me that they are not taking away my employment permit and IDs.”

At the present time, there is no definite response to Jose’s question. Although President-elect Trump seems to have softened his stance on young undocumented immigrants in one of his public interviews, there are no indications that he will continue the DACA program of his predecessor.

On the other hand, the DACA population’s supporters are increasing nationwide. Before the end of the Congressional sessions this month, a bipartisan bill called “Bar Removal of Immigrants who Dream and Grow the Economy” or BRIDGE Act was introduced by Senators Lindsey Graham (R-South Carolina) and Dick Durbin (D-Illinois).

This bill would allow eligible individuals the chance to apply for “provisional protected present,” which is a temporary protection from deportation similar to that provided by DACA. As part of the temporary protection, employment authorization will be issued to the applicants. The policy behind BRIDGE Act is to protect the investment that American communities have made in educating these young undocumented immigrants who were brought to the United States at a young age and who are currently eligible for Deferred Action for Childhood Arrivals (DACA).

Aside from proposed bipartisan BRIDGE Act, 14 mayors joined Chicago Mayor Rahm Emanuel last week in a letter to President-elect Trump seeking support for the DACA program. Included as signatories to the letter are mayors of cities who believe that DACA helps foster economic growth and enhances public safety and national security.

According to the Emanuel letter, “ Eighty seven percent of DACA recipients are employed with American businesses. Six percent of DACA recipients started their own businesses, higher than the American public (3.1 percent). All of these things translate into higher wages and better economic outcomes.”

Jose is one of the 87 percent of DACA recipients working for a U.S. enterprise and contributing to the US economy. Unfortunately, his fear of reverting back to his former status as an individual in unlawful presence without a valid identification is real; and, until there is certainty on the future of the DACA program, this population remains in limbo.

With a lot of support for the DACA population, the hope is that the incoming Trump administration would reconsider its anti-immigrant rhetoric during his run to the election and that the US Congress would immediately pass the BRIDGE Act.

(Atty. Lourdes S. Tancinco is a partner at Tancinco Law Offices, a San Francisco based law firm and may be reached at law@tancinco.com, facebook.com/tancincolaw, tancinco.weareph.com/old or 1 888 930 0808.)

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Global Pinoy

Reinstating the “Dead” Petition

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Joseph, a US citizen, petitioned for his 28 year-old daughter, Eliza, in June 1997. However, after the approval of the petition, Joseph died in California in 1999 before Eliza’s priority date became current. In 2004, Eliza wanted to come to the United States to visit her mother, Louida, who is now a US citizen. Eliza hasn’t seen her mother for over 10 years. Louida is elderly and has health conditions, and Eliza’s sister, a law permanent resident (LPR) in the US, is unable to care for Louida full-time. Desperate to see her mother, Eliza pays a travel agent in Manila to get her a B-2 visa. Because Eliza is still single and will have difficulty getting a visa, the travel agent gives Eliza a Philippine passport and US visa in another’s person name. Eliza enters the US and overstays to take care of her mother. In late 2005, Louida petitions for Eliza, and the petition is approved in 2008. Recently, Louida became very ill and she passed away two months ago. Eliza’s petition from her mother will be current next month.

Is she still eligible for apply for an immigrant visa?

Generally, a petition dies with the petitioner, and is automatically revoked. However, certain surviving relatives may be eligible to reinstate the petition under Section 204(l) of the INA. Section 204(l) relief is applicable only where the principal beneficiary or any derivative beneficiary of an approved petition can demonstrate that his or her primary residence was in the US at the time of the petitioner’s death, and he or she continues to reside in the US thereafter. In addition, the beneficiary must have a substitute sponsor for the I-864 Affidavit of Support who is a US citizen or LPR spouse, sibling, child, in-laws, grandparent, grandchild, or legal guardian. Once the petition is reinstated by USCIS, the beneficiary is eligible to apply for an immigrant visa.

In Eliza’s case, she is eligible to have her mother’s petition reinstated under Section 204(l) because she can demonstrate her continuous residence in the US at the time of her mother’s death and thereafter, and her LPR sister can act as the substitute sponsor. However, Eliza may be ineligible for the immigrant visa because (1) she overstayed in the US and (2) she used fraudulent documents to enter the US. Applicants applying for adjustment of status to LPR in the US, who are not immediate relatives, must have maintained legal status in the US to be eligible for the immigrant visa. Luckily, Eliza is eligible for a waiver of her unlawful presence in the US under Section 245(i) of the INA through her father’s approved petition that was filed on her behalf before January 1, 1998.

As to the fraudulent visa, Eliza will need to apply for a separate waiver, known as the I-601 waiver. This waiver requires Eliza to demonstrate that her qualifying relative, a US citizen or LPR spouse or parent, will suffer from extreme hardship if she is not granted the immigrant visa. Generally, an applicant cannot demonstrate extreme hardship where the qualifying relative has died, such as in Eliza’s case. However, Section 204(l) provides an exception to this rule so long as applicant is Section 204(l) eligible. In these cases, the qualifying relative’s death is treated as the functional equivalent of a finding of extreme hardship.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old , facebook/tancincolaw, or at 1-888-930 9096 or 1 415 397 0808)

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Updates

USCIS Announces Final Rule Adjusting Immigration Benefit Application and Petition Fees

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WASHINGTON – U.S. Citizenship and Immigration Services today announced a final rule published in the Federal Register today adjusting the fees required for most immigration applications and petitions. The new fees will be effective Dec. 23.

USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine the funding levels necessary to administer the nation’s immigration laws, process benefit requests and provide the infrastructure needed to support those activities.

Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions. This increase is necessary to recover the full cost of services provided by USCIS. These include the costs associated with fraud detection and national security, customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.

The final rule contains a table summarizing current and new fees. The new fees will also be listed on the Our Fees page on our website. Form G-1055 will not reflect the new fees until the effective date. Applications and petitions postmarked or filed on or after Dec. 23 must include the new fees or USCIS will not be able to accept them.

“This is our first fee increase since November 2010, and we sincerely appreciate the valuable public input we received as we prepared this final rule,” said USCIS Director León Rodríguez. “We are mindful of the effect fee increases have on many of the customers we serve. That’s why we decided against raising fees as recommended after the fiscal year 2012 and 2014 fee reviews. However, as an agency dependent upon users’ fees to operate, these changes are now necessary to ensure we can continue to serve our customers effectively. We will also offer a reduced filing fee for certain naturalization applicants with limited means.”

Read more about the new fee schedule on the Our Fees page. Highlights follow:

  • A modest fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.
    • USCIS will offer a reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.
  • The fee for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322, will increase from $550 or 600 to $1,170.
  • A new fee of $3,035 is required for Form I-924A, Annual Certification of Regional Center.
    In preparing the final rule, USCIS considered all 436 comments received during the 60-day public comment period for the proposed rule published May 4.