Seguritan US Immigration Articles

TPS Designation for Philippines

The Secretary of Homeland Security has the authority to designate a foreign country for temporary protected status (TPS) due to conditions in the country such as an ongoing armed conflict, environmental disasters and other extraordinary conditions that temporarily prevent the country’s nationals from returning safely.

Once the designation is made, TPS grants eligible nationals of the TPS country who are in the U.S. a temporary, humanitarian form of relief from deportation during the designated period and allows them to obtain work authorization and travel documents. It does not however lead to permanent residence status. Once granted TPS, the beneficiary cannot be detained by the DHS on the basis of his immigration status in the US unless he becomes ineligible or the country loses the designation.

Efforts to designate the Philippines for TPS have been made. Typhoon Haiyan, one of the most powerful storms ever recorded on land, affected over 7 million people in the Philippines. Over 5,000 lives have been lost and over 4 million people displaced.

At least three U.S. Senators, namely, Senator Charles Schumer, Senator Benjamin Cardin, and Senator Bob Menendez have submitted a request to the DHS to designate the Philippines for TPS. Other groups such as the American Immigration Lawyers Association (AILA) and the NY Legal Assistance Group have also sent similar requests.

According to them, requiring the Philippines to reabsorb its nationals from abroad, many of whom may have lost their homes, would impose a great burden on the rescue and restoration efforts in the country. TPS would provide a safe haven for those who are reluctant to return to potentially dangerous situations. It would also allow Filipinos in the U.S. to work and support their families in the Philippines who were impacted by the typhoon.

Eligible nationals of a country designated for TPS are also allowed to apply for nonimmigrant status, file for adjustment of status based on an immigrant petition and apply for any other immigration benefits or protection. The applicant must however still meet the basic requirements for other benefits sought.

To be eligible for TPS, the foreign national must meet the basic requirements, namely: that he is a national of a country designated for TPS, or a person without nationality who last habitually resided in the designated country; that he files for TPS status during the initial registration period or re-registration period or he meets the requirements for late initial filing during any extension; that he has been continuously physically present in the U.S. since the effective date of the designation; and that he has been continuously residing in the U.S. since the date specified in the designation.

Those who have been convicted of any felony or two or more misdemeanors committed in the U.S, or are found to be inadmissible to the U.S. based on grounds listed in INA section 212(a), including non-waivable criminal and security-related grounds, or are subject to any of the mandatory bars to asylum are not eligible for TPS. Those who fail to meet the initial or late initial registration requirements or fail to meet the continuous physical presence and continuous residence requirements are also ineligible for TPS.

Registration for TPS is made on Form I-821. It must be filed with Form I-765, application for Employment Authorization even if the applicant does not want an employment authorization document.

The decision to designate the Philippines for TPS lies with the executive branch of the federal government. Congress does not have to vote on it although members of Congress may make the request to the President. The decision ultimately rests with the President and his agencies.

Countries currently designated for TPS are El Salvador, Haiti, Honduras, Nicaragua, Somalia, Sudan, South Sudan, and Syria.

Immigration Relief for Filipinos Affected By Typhoon

Typhoon Haiyan has claimed over 4,000 lives in the Philippines, according to the latest tally of the National Disaster Risk Reduction and Management Council. Over 4 million have been displaced and the livelihood of about 5 million workers has been severely affected.

The relief response of the international community has been overwhelming. Many countries all over the world have provided aid to those affected, including the U.S. government which is providing more than $37 million in humanitarian aid.
In response to the devastation caused by the super typhoon, the U.S. Citizenship and Immigration Service (USCIS) released last November 15 an announcement reminding Filipino nationals of certain immigration relief measures available to them. The USCIS recognizes that natural catastrophes and extreme situations can happen. These disasters are beyond anyone’s control and can impact the individual’s ability to establish or maintain lawful immigration status in the United States.
Eligible Filipino nationals who are currently in the U.S. on a non-immigrant status can request to change or extend their non-immigrant status. The request can be filed even if their authorized period of admission already expired. Request for extension of stay is made on Form I-539. The applicants will need to explain how Typhoon Haiyan has disrupted their ability to travel home, how much longer they anticipate to stay in the U.S. and how they will support themselves while in the U.S. They may request for expedited processing of their application. They may also apply for a filing fee waiver if they are unable to pay.

For those paroled into the U.S., they can file application for an extension of parole and expedited processing. Extension of certain grants of advance parole may also be requested. Application for advance parole is made on Form I-131.

F-1 students who are experiencing severe economic hardship may request off-campus employment authorization. The request is made on Form I-765 and the students must show how the typhoon has affected their ability to pay their tuition and other expenses. Expedited adjudication and approval of application for work authorization is also available to them.

Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents may be requested.

The USCIS will also assist lawful permanent residents who lost their green cards and other USCIS-issued documents who are stranded overseas. For lawful permanent residents who are stranded in a place where there is no local USCIS, the USCIS and the Department of State will coordinate to provide assistance.

Those who lost their green cards may request to replace their cards on Form I-90. A request for interim evidence of permanent resident stamp (I-551 stamp) from a USCIS Field Office may also be made. Request for replacement of I-94 card is made on Form I-102.

Those who have received interview notices or request to submit evidence (RFE) in support of their application may show how the typhoon has affected their ability to appear or submit the documents required.

EB-3 Cut-off Dates Advance in December

The December 2013 Visa Bulletin shows that the worldwide employment-based third preference (EB-3) cut-off date will advance by one year from October 1, 2010 in November to October 1, 2011. The Philippines third preference cut-off date will move by three weeks to January 8, 2007.

India’s employment-based second preference will retrogress from June 15, 2008 to November 15, 2004 while its third preference will move back from September 23, 2003 to September 1, 2003. This is the result of the dramatic increase in applicant’s demand for visa numbers in the past few months.

The employment-based second preference (EB-2) will remain current for all countries except China and India. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – November 15, 2006; F-2A – September 8, 2013; F-2B – May 1, 2006; F-3 – March 8, 2003 and F-4 – September 8, 2001.

The Philippines cut-off dates are: F-1 – July 1, 2001; F-2A – September 8, 2013; F-2B – March 22, 2003; F-3 – January 22, 1993 and F-4 – June 1, 1990.

Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The family-based 1st preference category (F-1) refers to unmarried sons and daughters of U.S. citizens, while the F-2A preference refers to spouses and children (less than 21 years old) of permanent residents.

The F-2B preference category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents. The F-3 preference refers to married sons and daughters of U.S. citizens. The F-4 preference pertains to brothers and sisters of adult U.S. citizens.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification properly filed on or before April 30, 2001. If the visa petition or labor certification was filed after January 14, 1998, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

Adjustment of Status for Children of Fiancé(e) Visa Holders

The K-1 visa, also known as fiancée visa, allows a U.S. citizen to bring a foreign national fiancée into the United States. In order for the fiancée to be eligible to adjust status to permanent residence, they must marry within 90 days of the fiancée’s arrival in the U.S.

The fiancé(e)’s “minor child” may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent. If the marriage does not occur within the 90-day period, the fiancé(e) and the derivative child must depart the U.S.

What event fixes the derivative child’s age in order to find out if he or she is eligible for a green card? And what age should it be – 18 or 21? Until recently, there have been conflicting views on this issue.

In a case decided by the Board of Immigration Appeals, it was held that as long as the K-2 derivative child entered the U.S. before reaching age 21, he or she is eligible to adjust status.

That case was about Hieu Trung Le, the son of a Vietnamese woman who entered the U.S. on a fiancé(e) visa. Hieu Trung entered the U.S. at the age of 19 as an alien derivative child. His mother married her U.S. citizen fiancé immediately after arriving in the U.S.

About two months later, the mother and son applied for adjustment of status. Although the mother was approved, Hieu Trung was not because, according to the USCIS, he could not qualify as a stepchild of the fiancé petitioner. Under the law, in order to be a “stepchild” the marriage of the parent must have occurred before the child reaches the age of 18.

Hieu Trung was placed in removal proceedings. By that time, he had reached 21 years of age. He renewed his adjustment application before the judge as a relief in immigration court but the judge denied it, but for a different reason.

The judge said that the respondent was eligible for adjustment when he applied to the USCIS because he was then under 21 years old. However, since he was already over 21 years old, he was denied adjustment by the judge.

On appeal, the BIA rejected the reasoning of both the USCIS and the immigration judge. It found that a K-2 derivative child’s eligibility to adjust status is determined at the time of admission to the U.S. with the K-2 visa, and as long as the bona fide marriage between the K-2 child’s parent and the U.S. citizen occurs within the 90-day period.

The court said that the term “minor child” for whom K-2 derivative status is available means a “child” or an unmarried person under 21 years of age.

It also held that a fiancé(e) derivative child need not qualify as a “stepchild” of the U.S. citizen petitioner as long as he was a “child” of the fiancé(e) parent, i.e. under 21 years and unmarried.

Since Hieu Trung was 19 years old when he was admitted to the U.S. on his K-2 visa, the BIA said that he appears to be eligible for adjustment of status and therefore sent the case back to the immigration judge for further action.

This decision is beneficial to the children of foreign fiancé(e)s who lost the opportunity to become permanent residents because they had reached their 18th birthday before K-1/K-2 visa processing, which sometimes takes a year or more, was completed.

This also means that their eligibility for a green card will not be affected by government delay. It is unfair for these children to lose the chance to become lawful permanent residents and be separated from their family in the U.S. simply because they “aged out” before the USCIS adjudicated their adjustment applications.

Scroll To Top