Tag: uscis

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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.
Categories
Updates

Importance of Renewing Your Green Card Before It Expires

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A few weeks ago, there was a settlement by the State of Arizona in the case of Valle del Sol et al. v. Whiting et al , a lawsuit brought against SB1070 by immigrant rights and civil rights organization. The case was filed against SB1070 for its anti immigrant provisions. Through the settlement, the Arizona local enforcers are now prohibited, among others, from stopping or detaining individuals based solely on ethnicity and race and from questioning them about their immigration status. This is a positive development that prohibits racial profiling. However, despite this new development, the USCIS recently emphasized the importance of maintaining a green card that is valid and not expired.

Proof of Residency

Immigrant visa holders may prove resident status through an I-551 or popularly known as the green card. If the green card is not available, a USCIS temporary I-551 or Alien Documentary Identification and Telecommunication (ADIT) stamp on the passport shall be temporarily accepted. The green card is used as proof of legal immigrant visa status and can be used to re-enter if returning to un-relinquished, lawful permanent residence after temporary absence of less than one year. A copy of a green card is also used to show proof of valid immigrant visa status when petitioning family members.

Renewing the I-551

Permanent resident card or I-551 expires but not lawful permanent resident status every 10 years. At least 6 months prior to its expiration, the permanent resident must file for a replacement I-551 by filing a USCIS Form I-90. This may be filed directly to the USCIS or may be done electronically. If the green card holder has an expired I-551 and is outside the United States, he may not file the Form I-90. He must return to the U.S. and file the I-90. Before returning to the United States, the green card holder with the expired green card must obtain a “boarding foil” or a boarding letter from the USCIS at the US Embassy abroad to allow the person to return to the U.S. Upon arrival in the U.S. this individual may then file for the I-90.

While the I-90 is pending, USCIS must provide an adequate temporary substitution in the form of an endorsed I-94 or an ADIT stamp indicating temporary proof of resident status.

Filing for Naturalization

If the immigrant visa holder has a green card which is expired or has a validity period of less than 6 months, the USCIS will require this individual to first file for an I-90 before filing an application for naturalization is accepted. The proof of filing the I-90 will be the receipt notice and this receipt notice may be presented to the USCIS for an ADIT stamp as proof of immigrant status.

On the other hand, if the individual has a validity of more than 6 months on the I-551 or green card, there is no need to file for renewal or I-90 before filing an application for naturalization.

There is particular provision in the current law where an individual is required to maintain a valid green card. It is a misdemeanor under 8 USC § 1304(e) for a lawful permanent resident to fail to keep his green card at all times. This means that the green card must always have a valid date and must not be expired. Despite the settlement of the lawsuit mentioned above, it important to still maintain a valid green card or risk being charged for a misdemeanor.

(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, or 1 888 930 0808)

Categories
Updates

USCIS proposes parole status for foreign entrepreneurs

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The U.S. Citizenship and Immigration Services (USCIS) released a proposed rule that will allow the individuals referred to as “international entrepreneurs” to enter the United States temporarily on parole.  The parole status is similar to the status given to children of Filipino war veterans in a recent policy implemented a couple of months ago but in a different context. This recent international entrepreneur rule is considered to be a significant public benefit parole program to promote entrepreneurship and job creation.

There is a gap in the current immigration law  that will permit start up entrepreneurs  who receive significant capital investment from U.S. investors to stay and operate their businesses in the United States. Foreign students who are potential entrepreneurs and founders of start-ups have limited ways  to stay on a temporary visa after they graduate. Young immigrants who are researchers, innovators specifically in new technologies are not afforded sufficient avenues to develop their own start up businesses within the United States. The proposed  policy allows USCIS to use its discretionary parole authority to fill this gap and grant parole to founders of start-up entities whose entry would provide “significant public benefit” and whose start-ups have potential to facilitate research and development , create jobs for U.S. workers or otherwise benefit the U.S. economy through increased business activity, innovation and dynamism.

The proposed rule will grant parole status to an applicant who is an “entrepreneur”  of a start-up who has an active role in the operations and growth of the business. This entrepreneur must have recently formed a new start-up entity within three years before the date of filing the initial parole application.

Unlike an investors visa where the entrepreneur must show infusion of capital to the business that is formed from his own resources, an international entrepreneur seeking parole must show that the start-up business has potential for a “rapid growth and job creation.”

There are 3 alternative ways to prove this: first, that the business has significant U.S. capital investment of $345,000 or from established U.S. investors such as venture capital firms, angel investors and the like who have a history of substantial investment in successful start-up entities; second, the business received government funding of grants totaling $100,000 or more; and, third, any reliable and compelling evidence that will prove significant public benefit to the United States.

It is expected that this proposed rule will be implemented before end of this year; and, as soon as the rules are final, the USCIS will start accepting applications on new USCIS Form 941. The filing fee for this application is $1200. Once the application is approved, the entrepreneur, his/her spouse and minor children will be paroled into the United States and will receive employment authorization documents. Parole will be granted for up to 2 years and may be renewed for up to 3 years.

Recently it is noticeable that the current administration has been releasing new immigration policies. Even with a few months left before President Obama leaves office, he has somehow made good his promise to use his Executive power to fill in the gaps that have been left open by the failure of a divided Congress to pass any form of immigration legislation that is responsive to the competitive new global economy.

(For inquiries, you may reach Atty. Lourdes Santos Tancinco, Esq., at 1 888 930 0808 or email law@tancinco.com. This article also appears in the Philippine Daily Inquirer.)

Categories
Updates

Hardship to a Qualifying Relative in Waiver Application

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When USCIS announced the expanded waiver policy on July 29, 2016, several individuals with approved petitions who are unable to adjust inquired on whether they are eligible to apply for this new waiver. Other than an approved family or employment based petition, the eligibility requirements are the presence of a qualifying relative and proof of extreme hardship that this qualifying relative will suffer if the waiver is not approved.

James entered the United States as crewman in 2013. On his last arrival, James decided not to return to his ship and overstayed his authorized stay. His main reason for staying is that his U.S. citizen father suffered a stroke and he had to stay to take care of him. In 2015, the petition filed on behalf of James became current. Unfortunately, James could not adjust his status because of his unlawful presence and that he has no 245i. At the moment, his father is very ill and might only have a few months to live. He also has a one year old U.S. citizen child born out of wedlock. What are the chances that James is going to qualify for the provisional waiver?

The Waiver Application

An application for waiver is not simply an immigration form that one has to accomplish and submit. It requires more than just answering the questions on the form. The law requires that the applicant show a qualifying relative and that the qualifying relatives will suffer extreme hardship should the applicant be ordered removed.

The qualifying relatives should be either a parent or a spouse or both, who are lawful permanent residents or are U.S. citizens. The children who were born in the United States may not be considered as “qualifying relatives” for purposes of the waiver application. It is not possible to be granted a waiver if the individual in deportation or seeking waiver only has U.S. citizen children. It will also be challenging if there is a qualifying U.S. spouse but he does not present circumstances that will support a finding of “extreme” hardship.

Proving Extreme Hardship

The standards for extreme hardship are very high. The hardship should be more than the difficulties that will be experienced by the qualifying relative as a result of the deportation. Several case law including the case of Matter of Cervantes, 22 I&N Dec. 560 had served as guides in determining what constitutes hardship. The factors that can be considered are (1) presence of green card holder or U.S. citizen family ties of the qualifying relative; (2) country conditions in the country of relocation and qualifying relative ties to that country; (3) financial impact of departure from the United States; (4) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation.

In filing the application for waiver of the fraud, the applicant must include all documents and testimonies from individuals to show the varying factors that may be the basis for showing the hardship. Each individual case is different and so are the circumstances of the case. In the case of James, the qualifying relative is his U.S. citizen father. The minor child is not considered a qualifying relative. But despite the fact that the child is not qualifying relative, he may include the hardship of the child in the waiver application. But if the U.S. citizen father passes away, James will no longer be eligible for waiver because he no longer has a qualifying relative. It is best for James to file the waiver application as soon as possible while his parent is still alive. The extreme hardship to the ailing parent is obviously present for purposes of the waiver.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at 1888 930 0808 or visit her website at tancinco.weareph.com/old or facebook.com/tancincolaw)

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Updates

Revisiting the “Parole in Place” Policy for Children of WWII Veterans

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When U.S. Citizenship and Immigration Services officials visited the Philippine Consulate in San Francisco in July 2015 for a briefing on the Filipino World War II Veteran Policy, the issue that was of serious concern is about the eligibility of those who are in the United States in unlawful status. It was emphasized that the the FWVP parole is only for those outside the United States. Those who are in the United States must leave the country to get the parole but risk being barred for 3-10 years.

Those who are in the United States in unlawful status may still consider applying for a parole in place under the November 15, 2013 USCIS policy memorandum. However, parole in place has limited applicability.

Parole in Place

The U.S. Citizenship and Immigration Services released a Policy Memorandum titled “Parole of Spouses, Children and Parents of Active Duty Members of the U.S.Armed Forces, the Selected Reserve of the Ready Reserve, and Former Members of the U.S. Armed Forces or Selected Reserve of the Ready Reserve and the Effect of Parole on Inadmissibility under Immigration and Nationality Act§ 212(a)(6)(A)(i)”. Pursuant to this Memorandum the children, parents and spouses of active duty members of the US Armed Forces as well as the veterans of the US Armed Forces are entitled to a “parole” status.

Parole status means that those eligible will be considered granted temporary relief from removal and that they will be provided with employment authorization document. The new policy also shall allow immediate relative who are eligible for this parole in place status to adjust their status if they have an approved petition visa petition from their US citizen immediate relative. Parole status does not erase any period of prior unlawful presence.

Usually “parole” status is granted to those who are entering the United States but have no valid visas. The U.S. Citizenship and Immigration Services has the authority to grant parole based on humanitarian or emergency circumstances of the applicant for parole. In this new policy memorandum, the grant of parole status is extended to those who are already in the United States in unlawful status but who have entered the United States without inspection or admission. Those who have entered with a valid visa and later on had the visa expired are not eligible for the parole in place.

Considering that the “parole in place” relief has limited applicability to spouses, children and parents of members and veterans of the military service, only children of war veterans who entered without inspection are entitled to parole. Most Filipinos who enter the United States have in their possession valid nonimmigrant visas. At the time of their entry, they are inspected and admitted. Since they were inspected, even if there are those who failed to maintain lawful status, they still will not be eligible for the parole in place.

The case will be different for children of veterans who crossed the Canadian or the Mexican border. When someone crosses the border without the appropriate visa, these are considered to have entered without admission or inspection (known as “EWIs”). If such is the case, then the “parole in place” may be applied with the U.S. Citizenship and Immigration Services.

Yet. those who are not eligible for parole in place may explore the option of adjustment of status under Section 245(i) since most of the veterans petition for their children were filed in before 2001.

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

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Updates

Avoid Payment Scams: USCIS Does Not Accept Fees By Phone or Email

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Immigrants all over the country are being targeted in scams. Don’t be one of the victims! Scammers may call or email you, pretending to be a government official. They will say that there is a problem with an application or additional information is required to continue the immigration process. They will then ask for personal and sensitive details, and demand payment to fix any problems.

Remember, USCIS officials will never ask for payment over the phone or in an email. If we need payment, we will mail a letter on official stationery requesting payment.

If you receive a scam email or phone call, report it to the Federal Trade Commission at http://1.usa.gov/1suOHSS. If you are not sure if it is a scam, forward the suspicious email to the USCIS Webmaster at uscis.webmaster@uscis.dhs.gov. USCIS will review the emails received and share with law enforcement agencies as appropriate.

Visit the Avoid Scams Initiative at www.uscis.gov/avoid-scams for more information on common scams and other important tips. If you have a question about your immigration record, call customer service at 800-375-5283 or make an InfoPass appointment at http://infopass.uscis.gov.

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Updates

Provisional Waiver New Rules to Benefit More Unauthorized Immigrants

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A significant number of unauthorized immigrants who have been petitioned by U.S. citizen or residents’ relatives or employers still find themselves, after many years, still without legal status. Those who are not eligible, among others, include those who entered without inspection, fiancé visa holders with new partners, as well as those who entered with crewman visas. Generally, for those petitioned in family and employment-based preference categories they may adjust status only if they are in lawful status.

In 2013, the provisional waiver rules was released by the U.S. Citizenship and Immigration Services (USCIS) giving immediate relatives of U.S. citizens who are ineligible to adjust an opportunity to obtain a provisional waiver, leave the U.S. and get their immigrant visa at a U.S. Embassy or consulate abroad. Upon their return, they are considered legal residents after having cured their only ground of inadmissibility which is “unlawful presence” through approval of their provisional waiver. Unfortunately, this 2013 provisional waiver is very limited.

On July 29, 2016 USCIS announced that it is expanding the provisional waiver program. There are five changes to the provisional waiver rules.

First, more unauthorized immigrants may now apply for the provisional waiver and will have the opportunity to legalize their stay in the United States. In 2013, only those with immediate relative petitions were eligible for provisional waiver. Now, in 2016, individuals petitioned in any of the family or employment based preference categories may now apply for provisional waiver. The priority dates of these visa petitions must be current which means that there is an available visa and that the beneficiary does not have any other ground of inadmissibility other than being “out of status”. The Second change in the rule is consideration of additional relatives who may be qualifying relatives. For purposes of the extreme hardship requirement to qualifying relatives, the new rule now permits LPRs or green card holder parents and spouses to be considered for purposes of showing extreme hardship.

Thirdly, besides expanding the scope of petitions covered by the provisional waiver, the new rules also allow those in removal proceedings or those with removal orders to apply for provisional waiver.

Fourth, the new rules now clearly states that USCIS may no longer use the “reason to believe” that there are other grounds of inadmissibility to deny the provisional waiver. In the 2013 rules, despite an apparent eligibility for provisional waiver USCIS nevertheless denied waiver applications based on “reason to believe”. This is now eliminated in the 2016 rules.

Lastly, the Department of State “interview schedule” bar has been eliminated. USCIS may now allow applicants to apply for provisional waiver despite having been scheduled for a visa interview prior to 2013. In eliminating this bar, there will be more applicants who may qualify for the provisional waiver.

Those who may eligible may now prepare to file their applications for provisional waivers in time for the effectivity date of the new rule which is August 29, 2016.

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