It's Back! Filipino World War II Veterans Parole Program

Trump-era Cancellation of FWVP Has Been Reversed

After announcing in 2019 that the program would be terminated, USCIS has announced the Filipino World War II Veterans Parole Program (FWVP) will continue.

The FWVP Program became effective June 8, 2016 and presents a parole option for certain beneficiaries of petitions filed by Filipino WWII veterans or their surviving spouses.  The purpose of this generous program is to allow eligible beneficiaries to be in the United States with their aging parents while waiting for their priority dates to become current.

The program is carefully crafted to ensure parole eligibility for the sons or daughters of WWII veterans.  Under the FWVP Program, the following petitioner/beneficiary combinations are eligible for parole:

--Petition filed by a veteran (still living) for a son or daughter.

--Petition filed by a veteran (now deceased) for a son or daughter, if the veteran has a surviving spouse (and petition reinstated).

--Petition filed by a surviving spouse, for a son or daughter of the veteran.

--Petition filed by veteran or surviving spouse (both now deceased), for a son or daughter of the veteran (and petition reinstated).

For more information on the FWVP, see this page on USCIS.gov.

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Philippine No Objection Statement (NOS) More Difficult for J-1 (Teachers)

 The Philippine Exchange Visitor Program (EVP) Committee has issued new guidelines for obtaining a No Objection Statement (NOS), effective for requests received on and after May 25, 2021.

[Link to EVP Committee page with EVP Resolution 01-2021 (lifting the moratorium) and Revised NOS Guidelines.]

Thousands of Filipinos are in the U.S. in J-1 status.  Many of them are school teachers; mostly in public schools but some employed in private institutions.  New requirements for obtaining the No Objection Statement will make staying in the U.S. after their J-1 status expires very difficult.

NOTE:  Although this latest Resolution affects many different J-1 categories, this blog post is directed specifically to J-1 teachers.  And as always, this advice is only general in nature, is not a full discussion of all possible J-1 waivers, and may or may not apply to any one person’s specific situation.  Always consult an attorney for specific advice based on your individual circumstances.

Quick background.  Many teachers enter the U.S. on a J-1 visa that includes a two-year home country return requirement before they are allowed to change their immigration status to a different work visa categories or to U.S. permanent residence.  However, there are several ways to have the two-year return requirement waived that allows the teacher to remain in the U.S. after J-1 status ends.  The most common way to be allowed to stay is when the Philippine government issues them a “No Objection Statement”.  After suspending the issuance of NOS’s for the last 12 month, the Philippine EVP Committee has resumed accepting requests for No Objection Statements from J-1 nonimmigrants in the United States.  However, the new requirements for a NOS will make it extremely difficult or impossible for most teachers.

No longer is a NOS from the Philippine almost automatic if you met certain requirements, such as married to a U.S. citizen, have a U.S. citizen minor child, or in many cases, with even less justification for obtaining the NOS. 

The New Standard for No Objection Statements

Resolution 01-2021 allows for the grant of a NOS only “for highly meritorious cases that will redound to the benefit and national interest of the Philippines”.  The example of “highly meritorious circumstances” in the Revised Guidelines describes researchers or professionals whose work relates to Philippine government priorities and whose stay in the United States “will advance the Philippines’ national interest.”  Numerous additional filing requirements have also been added.

Future hope for No Objection Statements?

Reading Resolutions 01-2021 and the Revised Guidelines together, the EVP Committee makes clear their intent to only grant NOS’s for “highly meritorious” cases.  Only time will tell if the Committee strictly follows this new standard, or if a lesser standard evolves through later decisions or policy directives.

One possibility is that the EVP Committee may be asked to reconsider their recent decision as it applies to those teachers who already met the NOS requirements in effect prior to May 25, 2021.  Although they were eligible to obtain a NOS, they were unable to file their NOS requests because of the 12-month COVID-caused moratorium.  Through no fault of their own, the new Guidelines are effectively a retroactive rule change that disqualifies them despite their prior eligibility.  Although they were eligible for the NOS prior to May 25, 2021 under the old guidelines, they were prevented from applying for the NOS due to the moratorium.

Other Waiver Options

Aside from the NOS, two other waiver options are possible.  Neither of them easy.  The first is to show that the J-1 teacher would be subject to ‘persecution’ if returning to the Philippines.  The requirements for this waiver shares many of the same requirements as a request for asylum in the United States.  This ‘persecution’ waiver is rarely granted.

The second option is the “exceptional hardship waiver” which requires J-1s to prove that returning to their country of last residence will cause “exceptional hardship” to their U.S. citizen spouse or U.S. citizen child. Obviously, teachers without a US citizen spouse or child will not be eligible for this waiver. 

There is no single definition of “exceptional hardship”, or even agreement of what combination of hardships will rise to the level of “exceptional”, but the case law is clear that the hardship is much more then the usual inconvenience and disruption encountered with an unwanted departure from the United States. 

Teachers who feel that their departure will cause special and exceptional problems for their U.S. citizen child/spouse should discuss their particular situation with their immigration provider. 

Remember:  Two years out is not always the end of your U.S. career.

For teachers that will have to leave but wish to come back to the U.S. later to resume teaching, advance planning can increase your chance of returning.

Many teachers are in specialty fields where U.S. workers are in short supply.  That is unlikely to change in the next several years. 

Discuss with your employer the possibility of returning in two years.  Many schools are exempt from the annual “H-1B Cap”, making a return to the U.S. in H-1B status a viable option.

You can also discuss with your school district the possibility of returning in two years as a permanent employee.  This would require the school to go through the labor certification process – often referred to as “PERM” – to prove there are no workers able and willing to perform you job.  Your two years out provides the school with time to traverse the legal requirements that could lead to you returning as a permanent worker with proven abilities. 

Developing and communicating a plan to keep your skills sharp during your two-year absence may be helpful in convincing an employer of the benefit to them if when you return.  Suggestions would include plans to continue with your education, either in person or through remote training seminars.  Explore temporary employment in the Philippines at a quality school during your absence.  Determine if it is possible to keep your U.S. teaching license active while away. 

 

 

NOTE:  Because of our current workload, Austin & Ferguson, LLC is only scheduling consultations from current clients, former clients, and persons who we have done consultations with in the past.  Those persons can call 816 356-7100 to schedule a time to visit with an attorney.  This work reduction program began in April and will probably continue until August, 2021.

Weekend Skype appointments will still be occasionally available specifically for readers of this blog.  Those appointments can only be scheduled by emailing your information and a brief description of the problem to consultations@austinferguson.com.

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Philippines Again an H-2B "Eligible Country"

 

Philippines restored to list of eligible countries for H-2B Visas 

 Philippines H-2B eligibility is valid from January 19, 2021, to January 18, 2021.

 For additional information on how H-2B visas were still possible in 2019-20, along with a Question and Answer, see the January 22, 2019 blog discussion.

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H-4 EAD Program Will NOT Be Cancelled

The H-4 EAD program will continue unchanged.

The prior administration attempted to cancel allowing certain persons in H-4 status to obtain an Employment Authorization Document (EAD) by proposing a new rule that would cancel the program.  On January 25, 2021, the Department of Homeland Security withdrew the proposed rule from consideration before the cancellation of H-4 EADs went into effect.

This action means that persons in H-4 status who are elgible for work authorization can still apply for and receive an H-4 EAD.

However, issuance of H-4 EADs are experiencing substantial delays.

Over the last year, the time it takes to actually receive an H-4 EAD has slowed significantly.  There are two causes Hfor the processing delay. 

First, the delays began when USCIS changed their procedure to no longer adjudicate the H-4 Extension of Status (and attached I-765 EAD request) at the same time they decide the H-1Bs Extension of Status.  This added a delay of many months before the H-4 EAD was issued.

And second, overall USCIS processing times of many applications greatly slowed during COVID times.  A large part of the delayed processing has also been attributed to implementation of time-consuming changes in adjudicative policies that applied a more restrictive view to H-1B eligibility.

Many of us are hoping that these inefficiencies will gradually be corrected within the next year.

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New Immigration Laws on the Horizon? Don’t Get Scammed!

 There is not a new U.S. immigration amnesty law.

 Whenever there is a new major immigration law proposed, my phone starts ringing.  The top two questions:  “Will it apply to me?”, and “when can I apply?”

To all who have already called me or emailed, and to those who will do so in the next few weeks, below is the four part answer to those questions:

First, there is no new law.  Only the outline of a proposal has been made public.  Soon an actual bill may be introduced in the House and the Senate

Second, any bill introduced now is not what the law will say when – and if - it is later passed by Congress.  If this proposal is even actually taken up and considered by Congress, the legislation will first undergo hundreds of changes before there will be any chance of the legislation becoming a new law.

Third, this does not mean to give up hope that some law will pass that may benefit you.   There is presently considerable support in Congress to implement positive changes to our immigration system.  We all have to wait and see how this develops.

And fourth, be careful.  I always have to give this reminder whenever rumors are circulating of a new immigration laws.  There are good immigration providers and there are people who take advantage of your hope to just get your money.  If you wish to watch how the proposed legislation develops over the next several months, follow multiple reputable news sources.  Do NOT rely on social media posts and comments.

If a new law does pass, chose an immigration service provider carefully.  Look for knowledgeable immigration attorneys or agencies with non-attorneys accredited by the Board of Immigration Appeals.  Never trust anyone who does not take the time to deeply question and document your complete immigration history.  Aside from the obvious questions you would expect, a thorough immigration provider will discuss the details all of your entries and exits, history of any immigration filings by you or your relatives, details of documents you have used to work in the U.S., and any contacts you and your family have had with U.S. officials.  At some point, they may even ask about traffic tickets, so be prepared for a long discussion!

 

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Public Charge Rule Effective Date

Rule only applies to applications postmarked AFTER October 14, 2019. 

 

If you are in the U.S. and have delayed filing for Permanent Residence, file quickly!

Applications for Permanent Residence (“Adjustment of Status”) postmarked on or before October 14, 2019, will be decided under the old rules and using the old Affidavit of Support (I-864).  Unless a U.S. court orders implementation of the rule to be delayed, any applications filed after October 14th will be subject to the new rules, new difficult forms and new legal requirements.

Despite all the government press releases and talking points, this Rule is not about punishing immigrants who have or will receive public benefits.  This is the U.S. government trying to limit immigrants to those who are of working age and are likely to be able to support themselves without assistance from their families. There will be much written elsewhere about the purpose of this rule, but expect the rule to make it very difficult for U.S. Citizens to bring their parents to the United States.

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Effect of Philippine H2B/H2A Country List Removal

2021 UPDATE: Philippines restored to list of eligible countries for H-2B Visas.  

 Philippines H-2B eligibility is valid from January 19, 2021, to January 18, 2021.

 

 Prior blog post from January, 2019:

 This is NOT A TOTAL BAN on Philippine H-2Bs.   H-2 visas and H-2 status are still possible, but they will require additional evidence and will be fewer approvals. 

Every year, the United States publishes a list of countries whose citizens are eligible to receive H-2A (temporary-agricultural) and H-2B (temporary-non-agricultural) status.  This year, the U.S. removed the Philippines from the list, effective from January 19, 2019, to January 18, 2020. 

Below are the answers to the most common questions. [Information that uses the term “H-2” is applicable to both H-2A and H-2B]

  
Question:  I am in the U.S. now in H-2B status:
Answer:  There is no effect on your current H-2B status.

Question:  I am not in the U.S., but have a valid H-2 visa:
Answer:  You can still use the H-2B visa to enter the United States to begin or resume your authorized employment.

Question:  Can I change my status while in the U.S. from H-2 to some other nonimmigrant category?
Answer:  Yes.  Just because the Philippines was removed from the list does not immediately effect your current H-2 status.  As long as you are still in a valid H-2 status, you are eligible to request a change to a different non-immigrant status.

Question:  Can I change my status from something else to H-2B?
Answer:  Since you are now asking for H-2B status, the delisting of the Philippines makes obtaining H-2B status difficult.  However, see the exceptions below in “special requirements”.

Question:  Can I still change employers and extend my H-2B status without leaving the United States?
Answer:  An extension of your H-2B status requires a petition from a new employer.  That petition is effected by delisting the Philippines from the list of H-2 eligible countries.  With the new petition, your employer will have to submit evidence that you qualify for an exception.  See “special requirements”, below.

Queston:  My employer is in the process of filing an H-2B petition for employment later this year.  Will I still be granted the H-2B visa at the embassy in Manila?
Answer:  If USCIS properly approves an H-2 petition for you, the embassy will not use the delisting as a basis to deny you a visa. The approval of the petition, if properly completed with information regarding the special requirements (below), serves as notice to the embassy that USCIS determined it was in the U.S.’ interest to approve the petition.

Special requirements for Filipinos to obtain an H-2 visa or H-2 status:

USCIS can still approve H-2 petitions for workers from the Philippines.  However, USCIS must first determines that “it is in the U.S. interest for that alien to be a beneficiary of such petition.”  Many cases can still be approved under this standard.

Each request is decided ‘case by case’ and there are many factors USCIS will consider.  Included in those factors, and relevant to many Filipinos, are
            1) your previous history while holding H-2 status, and
            2)  that you are a low risk to commit fraud or abuse the H-2 visa system.

It is your particular facts and history, as outlined by your employer during the petition process, that will decide if USCIS will grant your H-2 petition.

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“What Happens to My Petition if the Law Changes?”

This is a big question right now.

For weeks the White House has been pushing to eliminate some immigrant relative categories.  They instead want a “merit-based” immigration system.  In addition, newly-proposed legislation would also eliminate several family categories.

For many decades the U.S. immigration system allowed petitions to be filed for many different relatives, with some of these foreign relatives placed on a waiting list before they can become Permanent Residents.


I do not usually comment on “proposed” laws.  Whenever a law is proposed, the final law, if there ever is the same as what was first proposed.  But, since what is being suggested is such a major change, and so many of our clients are concerned about what they are hearing in the news, I will break with tradition and discuss these frequent questions:

If the law changes and my family category is eliminated...


       -What happens to my already approved petition?


        -What happens to the petition that I already filed and is pending?


        -Should we hurry and file petitions for our family now?


First, look at what we have now.  Petitions can be filed for the following relatives:

• Spouse of a U.S. Citizen  (no waiting period)
• Parent of a U.S. Citizen  (no waiting period)
• Children (unmarried and under 21) of a U.S. Citizen (no waiting period)
• Unmarried sons and daughters of a U.S. Citizen  (long wait)
• Married sons and daughters of a U.S. Citizen  (long wait)
• Spouse of a Permanent Resident (after short wait)
• Children (unmarried and under 21) of a Permanent Resident (short waiting period)
• Unmarried sons and daughters of a Permanent Resident  (long wait)
• Brother or Sister of a U.S. Citizen (very long wait)

What might change?

There are no certain answers.  No one can tell you what will happen until a new law is passed.  No one can tell you what a new law says until the day it is passed.  Proposed laws constantly change right up to the time they are voted on by both the House and Senate.  Everything I write below this is pure speculation.

Current rumors and proposals would eliminate these categories:

• Parent of a U.S. Citizen
• Unmarried sons and daughters (over 21) of a U.S. Citizen
• Married sons and daughters of a U.S. Citizen
• Unmarried sons and daughters of a Permanent Resident

Brother or Sister of a U.S. Citizen

What might happen to the petitions?

In the past when a new law eliminated certain benefits, cases pending when the law changed would usually be allowed to continue to completion.  We have seen this many times in the past.  A good example of this, although it involved a ‘policy’ and not a ‘law’, is the recent termination of the DACA program. Applications pending on the day of the announcement were allowed to continue and applicants received the benefits from their application.  The reason for this practice is because it is the only right and fair action for the government to take. 

Any attempt to just sharply announce a retroactive termination of a program, after people have already correctly followed the rules and spent their time and money, would result in a flood of legal suits to compel the government to honor the old rules for pending cases.  Additionally, USCIS does not like to refund money.

New laws that change current laws will usually contain “transition rules” that describe how the changes will be made.  The transition rules explain how the government plans to honor old requests while moving to a new system.  One would expect this if immigration laws undergo a major shift.  But remember, this is all speculation!

Should I hurry and file petitions for my family now?

This is a choice everyone must decide for themselves.  IF the law changes, and IF petitions filed before a law change are still honored, then filing now will have been very smart.  The worse that can happen is you waste some money, but this is true for any petition that is filed when there is a multi-year waiting list – you never know if the relative will decide to immigrate when a visa becomes available.

Again, there is no new law.  Nothing has changed.  This is just my advice to those who are concerned with a future potential change.  But just to be safe, my office is moving all of these relative petitions to the top of the work pile for quick preparation and filing!

 
          IMMIGRATION LAW



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“PERM” Appeal Win Will Benefit Some Filipino Teachers

A three judge panel of the federal Board of Immigration Appeals (BALCA)  has granted an appeal filed by Austin &Ferguson, LLC, overturning the Department of Labor’s (DOL) repeated denials of PERM applications involving job positions with multiple jobs available.

This expansion of PERM requirements, here involving Filipino school teachers, will make it easier for some school districts to comply with the PERM regulations and request permanent residence for its teachers.

The problem faced by many school districts, and also by some other quasi-governmental employers, is that the administrative hiring process often take longer then it does for most private companies.  This delay in making final hiring decisions can cause the PERM application to be filed before a final employment decision has been made for each and every job applicant.  The result of the premature but necessary PERM filing was usually a denial of the application by the Department of Labor.

When a job position has been advertised for multiple openings, this new BALCA decision now requires DOL to approve some PERM applications even if hiring decisions have not been made for all of the applicants.  However, the employer must now show that even if they hired these ‘undecided’ applicants, there would still be a job position available for the foreign-born workers. 

While often it is strategically decided to bypass a PERM denial by just filing a new PERM application, we allowed this appeal to continue in an attempt to highlight the unfairness of this DOL requirement.  As a result, this decision will be of help to the many school districts around the country whose lengthy administrative hiring requirements have hampered their attempts to obtain permanent residence for their Filipino teachers.

 
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Huge July Advance in EB-3 Philippines and EB-3 India Final Action Dates

The 2017 July Visa Bulletin brought exciting news for many in the Employment-based 3^rd category for the Philippines and India.

Final Action Dates for the Philippines advanced 12 1/2 months from the May 1, 2013 cutoff date in June to May 15, 2014 in July.

 
India also made a large jump, advancing 9 months from the May 15, 2005 cutoff date in June to February 15, 2006 in July.

Please click here if you would like a detailed explanation of how to read the monthly Visa Bulletin, and the terms used here.

Remember, Priority Dates are sometimes subject to fluctuations.  Although these dates have advanced for July, it is always possible these Priority Dates will regress in August or September if the demand for visas is July is higher than expected.

For Those with Applications for Permanent Residence Already Pending:

Hundreds of Filipinos were able to file their residence applications in early 2015 and have just been waiting since then for their Priority Date to become current.  The same for Indian nationals, who filed their applications in 'the glitch of 2007'.  This July advance in the cutoff date will enable USCIS to approve many of those cases.  With most of these already-filed applications, you can expect you and your attorney to receive a request from USCIS for items necessary to complete your case. 

The most commonly requested documents are an updated medical exam and a job offer verification letter from your employer.  While it is important to respond to the request from USCIS quickly, it is equally important to not send these items until requested.  For my clients, I will be obtaining the appropriate job letters from the employer and will inform you if a new medical exam will be required.



         IMMIGRATION LAW


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EB “Dates for Filing” May 2017 Visa Bulletin: IGNORE for Now

Changes to the Employment-Based (“EB”) “Dates for Filing” chart in the May & June 2017 Visa Bulletin have created confusion.

USCIS will NOT allow EB Applications for Permanent Residence in May or June using the “Dates for Filing” chart.  For Employment-based cases, only the “Final Action Date” chart will be used.

The “Dates for Filing” chart began appearing in the Visa Bulletin beginning October, 2015, and ONLY applies to people applying for Permanent Residence with USCIS while in the United States.  Applicants obtaining their Immigrant Visa from outside of the U.S. should completely ignore the Dates For Filing chart.

Additionally, The Visa Bulletin’s “Dates for Filing” chart can only be used when specifically authorized by USCIS.  The Employment-based “Dates for Filing” chart has appeared in the Visa Bulletin for the last 19 months, and in only 5 of those months did USCIS allow these dates to be used for Permanent Residence filing.

It will be many months before USCIS allows us to use the Employment-Based “Dates for Filing” chart.

A more general discussion on using the Visa Bulletin can be found in Understanding the Visa Bulletin.


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          IMMIGRATION LAW

H-4 Extensions and H-4 EAD Processing Delays

When an initial or extension H-1B petition (Form I-129) is filed under the Premium Processing program, it is common to also include the H-4 applications (Form I-539) for family members and a request for an H-4 EAD (Form I-765) for the spouse.  The advantage of filing all of these requests together is that USCIS usually decided the H-4 application and H-4 EAD in the same quick time period as the H-1B petition.

USCIS has advised AILA that certain H-4 Extensions and H-4 EADs filed with the I-129 under Premium Processing might no longer be decided simultaneously. 

USCIS previously announced the Premium Processing program would be suspended for up to six months beginning April 3, 2017.  Because of the announced suspension of the program, USCIS is now receiving a substantial increase in the number of H1B/H4/H4EAD requests filed under Premium Processing.  In order to complete the review of the main H-1B petitions in the required 15 days, a decision on the accompanying H-4 and H-4 EAD requests may be delayed.

Remember, the Premium Processing program only guarantees that USCIS will review the H-1B petition within 15 days; USCIS is never required to also decide the family’s applications in that same amount of time.  USCIS has long advised that the quick adjudication of the extra applications from the family  was being done only as a convenience to the applicant as time allowed.



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            IMMIGRATION LAW

There is No Philippines Visa Free Travel to the U.S.

This rumor started last month with a fake news story on a phony news site,  tv-bbc.com.  People called us, we laughed and ignored the whole episode. 

Now the story is making the rounds again, and my office is getting calls again.

People, really.  Mentally absorbing a continual flow of questionable information received from dubious and unknown sources is intellectually stupefying.  Question everything you read, and always evaluate the source for veracity and bias.


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Panic Among Irregular Immigrants – The Ignored Executive Order on Interior Enforcement

While the media focuses on the Executive Order (EO) attempting to institute entry restrictions, the EO that changed the tenor of interior enforcement has caused fear and panic within the United States, including among Filipinos.

Conservative estimates place the number of Filipinos in the U.S. who have overstayed their visa to be over a quarter million, including Filipinos under DACA, Orders of Supervision or affirmative Deferred Action.

For many years we have lived under a rational immigration enforcement policy that established a list of priority cases to be targeted for removal from the United States.  Serious offenders, dangers to the community and recent illegal border crossers were the target of immigration enforcement actions.  People who did not pose a threat and stayed out of trouble have felt comfortable knowing that they were reasonable safe,

This has now ended with the signing of EO 13768 on January 25, 2017, effectively canceling the prior rational enforcement policies.


Enforcement actions are no longer restricted by the prior enforcement priorities.  In essence, we are back to the old system that allows Immigration and Customs Enforcement (ICE) to detain whoever they encounter, no longer restricted by the old policies.  A return to random and unpredictable immigration enforcement has led to stress and fear among the irregular population. 

Social media and irresponsible rumor mongering has escalated the fear.  Just look at the panic created when a false rumor was floated that the Philippines would be put on the list of countries barred entry into the United States! 

Once the travel ban rumor ran its course, media coverage of increased ICE enforcement around the country started a second panic.  New rumors are flying about everything from planned church raids to ICE removing children from school to lure their parents into surrendering.  People are hearing they should stay home, keep their kids out of school, and are worried about having contact with the police.

My advice – Calm Down!

Nearly all of the enforcement we have seen this week was directed at persons with criminal convictions or old deportation orders.  Yes, there have been collateral arrests of random persons they encounter during these arrests, and this is concerning but is nothing that was not common before the old prioritized enforcement policies.

Yes, we will see more random enforcement actions, but use rational thought when you hear exaggerated rumors.  Historically, and for me that is over 25 years, Immigration does not raid churches, or schools, or even large public gatherings.  There will always be some aberrant enforcement actions somewhere in the country, usually a poorly planned local enforcement action that National ICE often later apologizes for, but those are the exceptions.

There are some actions you can take now if you are concerned about your immigration situation. 

-Have your situation reviewed by a competent immigration attorney to review your history or any pending case you may be have to learn how that case may effect any attempted removal action against you.  An attorney, as well as many community groups, can also advise you on what to expect should you encounter an enforcement action.

-If you have an outstanding removal order, contact your consulate to update your travel documents.

-Contact your local immigrant community service organization for advise on developing a plan of action should a family member be detained.  That plan can include Powers of Attorney to handle your property or care for your children.

-Attend a local “Know Your Rights” presentation. 

And keep calm!


 
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Another Citizenship Quagmire: The Honorable Perfecto Yasay Jr

UPDATE:  On March 8, 2017, the Commission on Appointments rejected Perfecto Yasay for the position of Foreign Affairs Secretary because of U.S. Citizenship issues.  The post below remains accurate. 


February 12, 2017:  This has been a recurring story in the Philippines for decades.  City counselors, mayors, and even congressional candidates have been disqualified or removed from public office because they are U.S. Citizens. 

Now the confirmation hearing for Perfecto Yasay as the Secretary of Foreign Affairs has been rescheduled over unresolved allegations involving U.S. Citizenship.

Mr. Yasay was reported to have used a U.S. passport in the past when departing the Philippines, a strong, but not definitive, indication of U.S. Citizenship (despite an incorrect assertion made by an attorney, quoted here).   More recently an additional piece of evidence has been reported that indicates that Mr. Yasay may have renounced his Citizenship as recently as late 2016.

And there lies the quagmire:  How to correctly renounce U.S. Citizenship?

I am not a Filipino lawyer, so when I discuss the laws of the Philippines I speak only as an observer who has seen this story play out over and over in the media.  To hold certain Philippine government positions, some Filipinos must renounce any foreign citizenship they may also be holding  The case of Senator Grace Poe is a good example.  In order to become the chair of the Movie and Television Review and Classification Board (MTRCB), Ms. Poe signed and submitted to the Philippine government an Affidavit of Renunciation of US Citizenship, an action that appears to be a common requirement for certain government positions.  Similar renunciation affidavits were also used in other reported cases.  However, submitting such an affidavit to the Philippine government does not remove a person's U.S. Citizenship under American law.

There is an old adage in immigration law saying “you are a citizen of any country that claims you as a citizen”.  In other words, if the law of some country declares you to be a citizen of that country, then you are a citizen of that country and you must follow that country’s laws to terminate the citizenship.  For example, merely saying “I renounce” three times and spinning on your heel does remove the unwanted citizenship, unless there is a law in that country saying spinning and repeating will set you free.

The most common way to relinquish U.S. Citizenship is to make a formal renunciation in front of a U.S. consular officer.  Once the officer is convinced that the declaration is made knowingly and not under mental or emotional duress, citizenship is lost once approved by the consul.

Another way to relinquish U.S. Citizenship, and this was the method partially used by now-Senator Poe and others, was to commit an “expatriating act” with the intent to relinquish citizenship.  One of the statutory expatriating acts that will cause a loss of U.S. Citizenship is to accept employment with a foreign government requiring a declaration of allegiance to the foreign country before accepting the position.

Remember, however, that the expatriating act must be with the intent of giving up United States Citizenship.  One can accept employment with a foreign government and swear allegiance to that government, but if those steps were committed without the desire to lose U.S. Citizenship, citizenship is not lost.

In Senator Poe’s case, she began as chair of the MTRCB and swore an oath of allegiance to the Philippines on October 21, 2010.  She later formally renounced her U.S. Citizenship at the embassy in 2011 by asserting she committed an expatriating act in 2010, and the act was committed with the full intent to give up her U.S. Citizenship.  Although her Certificate of Loss of Citizenship was not approved until 2012, the U.S. consulate generously backdated the end of her citizenship to the date of her expatriating act, October 21, 2010.

Renouncing U.S. Citizenship is not complicated, but the fact that the problem occurs as often as it does is just another result of the close and longterm relationship between the United States and the Philippines.


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         U.S. IMMIGRATION LAW

Understanding the Visa Bulletin - Basics and Tips

        [Updated Nov. 1, 2016 to include “Dates for Filing” charts]  

 

The Visa Bulletin Explained

Whenever I begin a new topic in my immigration law class, we first cover the “vocabulary”, usually proclaiming,  “You can not discuss a subject if you do not know the language”.

Visa Bulletin.  If you are the beneficiary of an immigrant petition (other than the spouse, parent or child of an US Citizen), you probably already know about the Visa Bulletin (VB).  The VB is published monthly by the Department of State (DOS) to informs us of which immigrant visas will be available during the following month.  For example,  the VB published around May 9^th will show visa availability for the month of May.   Remember, the dates listed in the VB only apply to the month indicated on that issue.  Current and past Visa Bulletins can be found here.

Immigrant Categories.  Different immigrants are assigned different categories.  The number of visas available for each category are set by law and only Congress can change the mathematical formula.

Family 1st (FB1) Unmarried Sons and Daughters of US Citizens.
Family 2nd (FB2A) Spouses and Children of Permanent Residents.
Family 2nd (FB2B) Unmarried Sons and Daughters of Permanent.
Family 3rd (FB3)  Married Sons and Daughters of US Citizens.
Family 4th (FB4)   Brothers and Sisters of Adult US Citizens.
Employment 1st (EB1)  Priority Workers.
Employment 2nd (EB2) Professionals with Advanced Degrees & Exceptional Ability workers.
Employment 3rd (EB3)  Skilled Workers, Professionals, and Other Workers.
Employment 4th (EB4)  Certain Special Immigrants.
Employment 5th (EB5)  Immigrant Investors.

[Note: The Visa Bulletin DOES NOT APPLY to the Immediate Relatives of U.S. Citizens (parent, spouse or unmarried child under 21).  For the Immediate Relative category, a visa is always available.]

Priority Date.  This is the date a petition or application is received by USCIS or, in some cases, the Department of Labor.  Your Priority Date is your absolute place in line for an immigrant visa.  The date your petition is approved has no effect on your Priority Date, which is why it does not matter if USCIS takes five days or five years to approve, for example, an FB4 petition.  The wait for an FB4 immigrant visa is well over 10 years, and the day the petition is filed creates your Priority Date and your place in line for an immigrant visa.

Cutoff Date.  These are the dates in the Visa Bulletin shown for each immigrant visa category.  Once your Priority Date is earlier than the Cutoff Date, your priority date is now “current” and an immigrant visa is available for you.  If your Priority Date is the same (a common mistake) or later than the Cutoff Date, keep waiting.

“C”.  When the Cutoff Date is replaced by the letter “C”, all Priority Dates are current and visas are available for every Priority Dates in that category.

“U”.  Likewise, when the Cutoff Date is replaced by the letter “U”, no visas are available in that category regardless of the Priority Date.

Country of Chargeability.  Along with a Congressionally established limit on how many visas are available for each category, there is also a limit on how many visas in each category that can be issued to any one country.  This limit is called the “per-country limit”.  The country your visa is counted against, or ‘charged’ to, is your Country of Chargeability.  This is important because for some countries, including the Philippines, the number of persons waiting for visas exceeds the annual per-country limits, creating a longer wait for visas then most other countries. 

Your Country of Chargeability is determined by your place of birth, not your place of residence or citizenship.  In some special situations, you can use the Country of Chargeability of your spouse or parent, if different from your own, usually benefiting you with a shorter wait.  In even more rare cases, double cross-chargeability is possible; simultaneously taking the Priority Date from the direct petition beneficiary and the Country of Chargeability from the dependent spouse.

“All Chargeability Areas Except...”.  On the Visa Bulletin, this is all Countries of Chargeability other than those four or five where demand for visas have exceeded the per-county limits.  Currently, only China, India, Mexico and the Philippines have their own cutoff dates because of the per-country limits.  The Dominican Republic also occasionally makes this list.  All other countries fall under the “All Chargeability Areas Except...”.

Retrogression, also sometimes referred to as Regression.  There are times with the Department of State realizes that they have advanced the cutoff dates too far and are receiving more visa applications than there will be visas available.  When this occurs, DOS backs up the cutoff date, moving it further back in time in order to slow the number of visa applicants.  Sometimes the cutoff date will retrogress a few months or years, and sometimes they just make that category Unavailable.

The Charts in the Visa Bulletin

Before October, 2015, the Visa Bulletin contained only two main charts:  Family-Sponsored Preferences and Employment-Based Preferences.  These charts listed the Cutoff Dates in each preference category.  Remember, if your Priority Date is earlier than the Cutoff Date shown in your category, you may now be granted an immigrant visa or apply for Permanent Residence.

The Visa Bulletin now contains four charts:

            #1            Family-Sponsored Preferences “Final Action Date” Chart
            #2            Family-Sponsored Preferences “Dates for Filing” Chart
            #3            Employment-Based Preferences “Final Action Date” Chart
            #4            Employment-Based Preferences “Dates for Filing” Chart


The Two “Final Action Date” Charts
“Final Action Date” is just a new name for the old charts that have always been in the Visa Bulletin.  With one “Final Action Date” chart for Family and the other for Employment, these charts continue to serve the Visa Bulletin’s main function of informing both the government and the public of when an immigrant visa can be issued.  When a person’s Priority Date is earlier than the Cutoff Date shown in their particular category and country, an immigrant visa is now available.  Anyone who will be applying for their visa at a U.S. Embassy or Consulate will require a current Priority Date on the “Final Action Date” Chart before a visa will be issued.

The Two “Dates for Filing” Charts
The “Dates for Filing” charts are causing confusion.   There are three points to remember when looking at the “Dates for Filing” charts. 

First, this chart is ONLY for people applying for Permanent Residence with USCIS while in the United States.   Applicants obtaining their Immigrant Visa outside of the U.S. should completely ignore the Dates For Filing chart!

Second, there are some months each year when the “Dates for Filing” charts cannot be used. 

And third, whenever the “Dates for Filing” charts are not to be used, the “Final Action Date” charts must be followed.

The “Dates for Filing” Charts

The original purpose of the “Dates for Filing” chart was to give people applying for Permanent Residence while in the United States the opportunity to file their application before their Priority Date is current on the “Final Action Date” chart.  Hence the name, “Dates for Filing”.  By filing early – before a Priority Date is current – a person can obtain work authorization and sometimes travel authorization while they are technically still “in line” waiting for their turn to become Permanent Residents. 

Before each month’s Visa Bulletin goes into effect, USCIS will decide if people can use the “Dates for Filing” chart, or if they must use the “Final Action Date” chart.  However, their decision is nowhere to be found in the monthly Visa Bulletin.  Instead, you must go to the USCIS websitefor their monthly update of which chart can be used to file for Permanent Residence.  

For example, look at 2016.  From January to April, USCIS allowed people to file for Permanent Residence using the Family-Sponsored “Dates for Filing” chart, but not the Employment-Based “Dates for Filing” chart.  From May to September, the use of either “Dates for Filing” chart was forbidden.  But then for October and November, both “Dates for Filing” charts could be used when filing for Permanent Residence. 

Remember, if USCIS does not allow a “Dates for Filing” chart to be used, you must instead use the “Final Action Date” chart.

Also remember that if you file for Application for Permanent Residence in a month when your Priority Date is not current on the appropriate chart for that month, you risk having your case denied and you wasted the filing fees you paid.

Example: Using the “Final Action Date” Chart

Put all of this to practice by using the “Final Action Date” chart below from the November 2016 Visa Bulletin.  Consider an FB-3 beneficiary (married son or daughter of a U.S. Citizen) from the Philippines with a Priority Date of March 1, 1999.  First, locate the cutoff date for FB-3 under ‘Philippines”, and you will find the date of August 8, 1994.  This date tells us that the government is able to grant visas to persons with a Priority Date before August 8, 1994, four and one-half years earlier than our beneficiary’s Priority Date of March 1, 1999. 

Final Action Date - Philippines
(November 2016)

CATEGORY	All Chargeability    Areas	Philippines
FB1 FB2A FB2B FB3 FB4	22 OCT 09  22 JAN 15 15 APR 10 22 JAN 05 01 AUG 03	01 SEP 05 22 JAN 15 15 FEB 06 08 AUG 94 08 MAY 93

Saying that there is still a four and one-half year wait would be incorrect.  No one know can predict with any level of certainty how long the wait will be before the Priority Date is current.  Visa allocation follows a complex mathematical formula that can be modified by Congress at any time, plus the Department of State does not know how many people are actually waiting for a visa in this category.  An accurate legal advisor say (and accuracy is vital in immigration law) that ahead of you in line are all the petitions filed in the four and one-half years between August 8, 1994, and March 1, 1999, plus their spouses and maybe some children, and the wait for your immigrant visa may be more or less than that  four and one-half years.

Example: Using the “Dates for Filing” Chart

Let us use the example of a Filipino teacher in the United States with an Employment-Based 3^rd Preference (EB-3) priority date of October 1, 2011.  Since the teacher is lawfully in the United States and is eligible for Permanent Residence, he will apply for Residence with USCIS instead of applying for his Immigrant Visa through the U.S. Embassy in Manila.

The first step is to compare his Priority Date to the cutoff dates on both the “Final Action Date” and the “Dates for Filing” charts.  The teacher’s Priority Date is October 1, 2011.  The ‘Final Action’ cutoff date is April 1, 2011.  Since the cutoff date is earlier than the Priority Date, no immigrant visa is available yet for this teacher.  There are still six months worth of petitions that must be worked before it is this teacher’s place in line for his Immigrant Visa.

The result is different when looking at the November “Dates for Filing” chart.  The EB-3 cutoff date is September 1, 2013, almost two years ahead of the Priority Date!  A quick check with USCIS [https://www.uscis.gov/visabulletininfo]shows that the November, 2016, Employment-Based “Dates for Filing” chart can be used to file for Permanent Residence during the month of November.

Result-  Although no immigrant visa is yet available according to the “Final Action Date” chart, this teacher can now file his Application for Permanent Residence.


For a more detailed discussion of using the Dates for Filing” charts, see the Q & A section of the blog post titled, “Early Adjustment Filing Fast Facts – October Visa Bulletin”.

 (For my law students who read this, yes, Final Action Dates will always be on the final.)


             

                    U.S. IMMIGRATION LAW

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