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.



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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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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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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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