Immigration law is complicated. The more you understand your case, the less likely you will be taken advantage of or follow poor advice.
First, a few background facts.
1. FB1 is the family immigrant category for a petition beneficiary who is the unmarried son or daughter (at least 21 or over) of a U.S. Citizen.
2. FB2B is the family immigrant category for a petition beneficiary who is the unmarried son or daughter (at least 21 or over) of Permanent Residents.
3. If a Permanent Resident files a FB2B petition, and then later becomes a U.S. Citizen, the FB2B petition automatically changes to an FB1 petition. This is called "automatic conversion".
Since July 1, 1992, the wait to get a green card for the Filipino son/daughter of a U.S. Citizen was longer than for the son/daughter of a Permanent Resident. This is still true today. Next month, February 2014, immigrant visas will finally be available to FB1 beneficiaries whose petition was August 15, 2001, yet FB2B beneficiaries from May 23, 2003 can now become Permanent Residents. This is backwards of what it should be, but since Filipinos became naturalized US Citizens at a much higher rate then other countries, the demand in FB1 increased while demand in FB2 decreased.
In 2002, Congress provided a fix for this problem by creating a law giving FB2B beneficiaries a one-time option to "opt out" of the automatic conversion to FB-1 after their Permanent Resident parent becomes a U.S. Citizen. The opt out request is nothing more than a simple letter to the USCIS office that approved the petition. However, Congress did not provide a way to undo an opt out.
This opting-out has worked well for ten years as FB1 is still slower than FB2B. But that may change. It is very possible that sometime in the next few years, FB1 cutoff dates will overtake and pass FB2B, making FB1 the category with the shorter wait. Beneficiaries whose FB2B priority dates are still many years away, and who followed bad advice and already opted out of FB1, may find themselves stuck in the slower FB2B category!
Two pieces of general advice:
1. In most cases, if you are a Permanent Resident now, and have an older unmarried son or daughter, file the FB2 petition now and get them in the line for an immigrant visa. Remember, it the date the petition is filed, not the date it is approved, that marks their place in line for a visa. USCIS may take 2-4 years before approving the petition, but it does not matter. USCIS knows it will be many years before a visa is available so they take their time, and just the filing gets them in line as long as the petition is approved later.
2. DO NOT OPT OUT UNTIL YOU SEE WHICH CATEGORY WILL BECOME CURRENT FIRST! There is no reason to change back to FB2B years before your priority date is current. Wait until you see which category is advancing quicker, then opt out of FB1 only if FB2B is still the best choice.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
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Friday, January 31, 2014
Thursday, January 16, 2014
USCIS Continues to offer "Special Benefits" for Filipinos
Even without TPS, the US Government still provides token benefits to citizens of countries struck by natural disasters. These special benefits have been available to Filipinos since November 15th, but unlike TPS, there are very few Filipinos in the United States who can use these tools. Below is a list of these benefits and a very short description of how they might be used:
Late-filed applications for a change or extension of nonimmigrant status. Applications to change or extend a nonimmigrant status must be filed before your current status expires. However, if you file late and can show the reason for filing late is directly related to Typhoon Haiyan, USCIS may approve the application and grant the status.
Favorable consideration for off-campus employment authorization of F-1 Students.
F-1 students can always apply for employment authorization based on "economic hardship". Although work authorization is not guaranteed, USCIS will look more favorably on requests from students whose source of funding was decreased by Typhoon Haiyan. Consider carefully before making such a request, since being able to finance your education is one of the requirements to maintain your F-1 status! Carefully review the description of your financial support indicated on your I-20 and be able to explain how Typhoon Haiyan directly effected your source of support. Also, this does not waive the work hour limitations! These requests for economic hardship EADs will receive expedited attention from USCIS.
Expedite for Immediate Relative Petitions. In 2013, the time required for USCIS to make a decision on Immediate Relative petitions grew from 3-4 months to the present ridiculous 8-10 months. They are now trying to work through a huge backlog of petitions. Because of Typhoon Haiyan, USCIS states that they are trying to pull Immediate Relative petitions for Filipino beneficiaries out of the queue and issuing decisions. This only applies to petitions for Immediate Relatives (parents, spouse or children of U.S. Citizens). This does not apply to the spouses or children of Permanent Residents (FB-2A).
Extension of parole grants. If you are currently in the United States and have been given "parole" status by USCIS, your parole can be extended by showing you the area where you are to be returning was adversely effected by Typhoon Haiyan.
Expedited advance parole document. Parole requests can be expedited if the purpose of the trip is related to Typhoon Haiyan. You must already be in an immigration status eligible to request advance parole, the largest group being Filipinos with an application for adjustment of status on file.
Extension of advance parole. If you have already been granted an advance parole and feel it does not give you enough time for the emergency purpose of your trip, the USCIS office at the Manila Embassy can grant parole extensions.
Expedited select employment authorization applications. If you are in a status that allows you to request a employment authorization and you are applying for your first work card, you can request the card be expedited if you need immediate employment to assist your family in the Philippines, or to compensate for the loss of overseas support as a result of Typhoon Haiyan. This would mostly apply to new applicants for permanent residence, spouses of J-1s, and parolees.
These are the main points and perhaps some Filipinos may benefit from these small favors. Before applying for these benefits, it is best to consult with someone aware of the procedural requirements and who can verify your eligibility.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
Late-filed applications for a change or extension of nonimmigrant status. Applications to change or extend a nonimmigrant status must be filed before your current status expires. However, if you file late and can show the reason for filing late is directly related to Typhoon Haiyan, USCIS may approve the application and grant the status.
Favorable consideration for off-campus employment authorization of F-1 Students.
F-1 students can always apply for employment authorization based on "economic hardship". Although work authorization is not guaranteed, USCIS will look more favorably on requests from students whose source of funding was decreased by Typhoon Haiyan. Consider carefully before making such a request, since being able to finance your education is one of the requirements to maintain your F-1 status! Carefully review the description of your financial support indicated on your I-20 and be able to explain how Typhoon Haiyan directly effected your source of support. Also, this does not waive the work hour limitations! These requests for economic hardship EADs will receive expedited attention from USCIS.
Expedite for Immediate Relative Petitions. In 2013, the time required for USCIS to make a decision on Immediate Relative petitions grew from 3-4 months to the present ridiculous 8-10 months. They are now trying to work through a huge backlog of petitions. Because of Typhoon Haiyan, USCIS states that they are trying to pull Immediate Relative petitions for Filipino beneficiaries out of the queue and issuing decisions. This only applies to petitions for Immediate Relatives (parents, spouse or children of U.S. Citizens). This does not apply to the spouses or children of Permanent Residents (FB-2A).
Extension of parole grants. If you are currently in the United States and have been given "parole" status by USCIS, your parole can be extended by showing you the area where you are to be returning was adversely effected by Typhoon Haiyan.
Expedited advance parole document. Parole requests can be expedited if the purpose of the trip is related to Typhoon Haiyan. You must already be in an immigration status eligible to request advance parole, the largest group being Filipinos with an application for adjustment of status on file.
Extension of advance parole. If you have already been granted an advance parole and feel it does not give you enough time for the emergency purpose of your trip, the USCIS office at the Manila Embassy can grant parole extensions.
Expedited select employment authorization applications. If you are in a status that allows you to request a employment authorization and you are applying for your first work card, you can request the card be expedited if you need immediate employment to assist your family in the Philippines, or to compensate for the loss of overseas support as a result of Typhoon Haiyan. This would mostly apply to new applicants for permanent residence, spouses of J-1s, and parolees.
These are the main points and perhaps some Filipinos may benefit from these small favors. Before applying for these benefits, it is best to consult with someone aware of the procedural requirements and who can verify your eligibility.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
Friday, January 3, 2014
Filipino Fear of Filing for DACA
If the Philippines is given Temporary Protected Status, will we see the same reluctance to apply for TPS that we are experiencing with Deferred Action for Childhood Arrivals (DACA)?
DACA is an immigration program that helps young persons who entered the U.S. when under 16 years old to obtain work authorization and other legal documents. A recent story on National Public Radio (NPR) claimed that less than 20% of eligible Filipinos have applied for DACA. The story blames social embarrassment as the reason for the low number of Filipino DACA registrants, implying that Filipinos fear humiliation from their own community if it becomes known that they are not in valid immigration status.
TPS can provide important benefits to Filipinos in a legal status (such as H-1B, H-4, F-1 or F-2), but like DACA, TPS is of even more help to those out of status. When other countries were granted TPS, those without legal status gained the most from TPS. Being able to legally work, get a valid social security card and travel are amazing benefits.
Protecting the privacy of our clients is a mandate at Austin & Ferguson, LLC. Because USCIS uses a centralized filing system, all DACA and TPS cases are easily handled by mail and over the internet. This allows us to successfully handle not just DACA cases but most other types of immigration cases as well for clients from all over the United States. If the Philippines is designated for TPS, it would be sad if the fear of social scorn deters anyone from privately getting the wonderful benefits of the TPS program.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
DACA is an immigration program that helps young persons who entered the U.S. when under 16 years old to obtain work authorization and other legal documents. A recent story on National Public Radio (NPR) claimed that less than 20% of eligible Filipinos have applied for DACA. The story blames social embarrassment as the reason for the low number of Filipino DACA registrants, implying that Filipinos fear humiliation from their own community if it becomes known that they are not in valid immigration status.
TPS can provide important benefits to Filipinos in a legal status (such as H-1B, H-4, F-1 or F-2), but like DACA, TPS is of even more help to those out of status. When other countries were granted TPS, those without legal status gained the most from TPS. Being able to legally work, get a valid social security card and travel are amazing benefits.
Protecting the privacy of our clients is a mandate at Austin & Ferguson, LLC. Because USCIS uses a centralized filing system, all DACA and TPS cases are easily handled by mail and over the internet. This allows us to successfully handle not just DACA cases but most other types of immigration cases as well for clients from all over the United States. If the Philippines is designated for TPS, it would be sad if the fear of social scorn deters anyone from privately getting the wonderful benefits of the TPS program.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
Monday, December 16, 2013
What to Prepare if TPS is Granted to the Philippines
The specific documents needed will depend on your personal situation and
will be explained if USCIS announces TPS for the Philippines in the Federal
Register.
But taking into account our more than twenty years of extensive experience
in preparing and litigating TPS claims, the following items are commonly
needed:
-Evidence of citizenship (Philippine passport or birth certificate).
-Evidence of identity (passport or drivers license)
-Status Evidence (if in lawful status).
-Certified misdemeanor criminal records (if needed)
-Presence/Residence evidence since [unknown date] in November (possible
documents include passport stamps, pay stubs, rent receipts, utility bills,
school records, letters, hospital or medical records, etc.)
As with each case, which exact documents you submit depends on your own
personal circumstances.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
will be explained if USCIS announces TPS for the Philippines in the Federal
Register.
But taking into account our more than twenty years of extensive experience
in preparing and litigating TPS claims, the following items are commonly
needed:
-Evidence of citizenship (Philippine passport or birth certificate).
-Evidence of identity (passport or drivers license)
-Status Evidence (if in lawful status).
-Certified misdemeanor criminal records (if needed)
-Presence/Residence evidence since [unknown date] in November (possible
documents include passport stamps, pay stubs, rent receipts, utility bills,
school records, letters, hospital or medical records, etc.)
As with each case, which exact documents you submit depends on your own
personal circumstances.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
Sunday, December 15, 2013
Philippine TPS Will Raise Special Immigration Issues
I have written on TPS issues in the past, and have instructed attorneys and
students on this topic for many years. The question I am receiving from
other Immigration Law attorneys now is "How will TPS interact with H-1B
Status?"
The designation of Temporary Protected Status for the Philippines would
create an unusual problem. Many thousands of the Filipinos in the U.S. are
already in a temporary legal status, most commonly B-1, B-2, H-1B, H-1C,
H-4, J-1, J-2, F-1 or F-2 status. This was not the case with the prior
countries designated for TPS. While it is easy to obtain TPS status, what
must be planned is what will happens when TPS ends? What is the end game if
you want to return to your previous nonimmigrant status?
It is possible to be granted TPS and still maintain your old status, but you
must continue to follow the rules of the old status. For example, if you
are an H-4 (dependent spouse or child of an H-1B worker), just being granted
TPS does not end nor violate your H-4 status, as long as you continue to
follow the rules for H4s and extend your H4 status before it expires.
However, H-4s are not allowed to be employed. If you ask for work
authorization with your TPS, and then are employed, you violate your H-4
status. You are no longer an H-4, just a person with TPS.
The issue then is how to return to your old nonimmigrant status when TPS
ends? For a change of status in the United States, TPS is considered a
valid nonimmigrant status, making it possible in some cases to switch back
from TPS to your prior nonimmigrant status.
Some people may choose to continue with the requirements of their old
status, depending on their own circumstances. For example, if you are an
H1B worker in a job that requires frequent travel outside of the US, you may
find travel as an H1B to me much easier than having to repeatedly obtain
advance permission to travel under TPS.
These are the type of issues that must be discussed and strongly considered
before a person in valid status obtains a TPS work card and violates their
current status.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
students on this topic for many years. The question I am receiving from
other Immigration Law attorneys now is "How will TPS interact with H-1B
Status?"
The designation of Temporary Protected Status for the Philippines would
create an unusual problem. Many thousands of the Filipinos in the U.S. are
already in a temporary legal status, most commonly B-1, B-2, H-1B, H-1C,
H-4, J-1, J-2, F-1 or F-2 status. This was not the case with the prior
countries designated for TPS. While it is easy to obtain TPS status, what
must be planned is what will happens when TPS ends? What is the end game if
you want to return to your previous nonimmigrant status?
It is possible to be granted TPS and still maintain your old status, but you
must continue to follow the rules of the old status. For example, if you
are an H-4 (dependent spouse or child of an H-1B worker), just being granted
TPS does not end nor violate your H-4 status, as long as you continue to
follow the rules for H4s and extend your H4 status before it expires.
However, H-4s are not allowed to be employed. If you ask for work
authorization with your TPS, and then are employed, you violate your H-4
status. You are no longer an H-4, just a person with TPS.
The issue then is how to return to your old nonimmigrant status when TPS
ends? For a change of status in the United States, TPS is considered a
valid nonimmigrant status, making it possible in some cases to switch back
from TPS to your prior nonimmigrant status.
Some people may choose to continue with the requirements of their old
status, depending on their own circumstances. For example, if you are an
H1B worker in a job that requires frequent travel outside of the US, you may
find travel as an H1B to me much easier than having to repeatedly obtain
advance permission to travel under TPS.
These are the type of issues that must be discussed and strongly considered
before a person in valid status obtains a TPS work card and violates their
current status.
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
Thursday, December 12, 2013
Benefits of TPS for the Philippines
TPS is a powerful benefit. To those that apply and are eligible, they are
protected from being deported from the United States, can obtain unlimited
employment authorization and can receive permission to leave and return to
the U.S. for urgent or emergency travel.
For Filipinos not in a legal status, this is an amazing law. TPS can fill
the time gap while waiting for a family petition to become available, and
even allow for travel to and back from the Philippines in some cases! For
those currently in some other nonimmigrant status, TPS may be used for
additional job opportunities or to bridge gaps in status while waiting for
your employment-based immigrant priority date to be current. BUT CAUTION-
You should first understand the risks of TPS benefits before making any
decisions regarding TPS applications!
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
protected from being deported from the United States, can obtain unlimited
employment authorization and can receive permission to leave and return to
the U.S. for urgent or emergency travel.
For Filipinos not in a legal status, this is an amazing law. TPS can fill
the time gap while waiting for a family petition to become available, and
even allow for travel to and back from the Philippines in some cases! For
those currently in some other nonimmigrant status, TPS may be used for
additional job opportunities or to bridge gaps in status while waiting for
your employment-based immigrant priority date to be current. BUT CAUTION-
You should first understand the risks of TPS benefits before making any
decisions regarding TPS applications!
View Qualifications of Attorney James W. Austin
Go to the Most Recent Philippines-US Immigration Topics
Go To Austin & Ferguson, LLC Home Page
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