USCIS Announces Filipino World War II Veterans Parole Program Policy

On May 9, 2016, the United States Citizenship and Immigration Services (USCIS) announced the implementation of the Filipino World War II Veterans Parole Program (FWVP) policy effective June 8, 2016. The FWVP will allow the beneficiaries of approved family-based immigrant visa petitions filed by a qualified Filipino WWII veteran (or surviving spouse) to apply for parole while they wait for an immigrant visa number to become available. To learn the background and details of the program, please see our full article [see article]. In this post, I will explain the reasons why USCIS implemented the program and why I think it is an appropriate exercise of the Attorney General's statutory parole authority.

WHY USCIS CREATED THE FWVP

USCIS laid out its reasoning for creating the FWVP policy in a Federal Register notice announcing the program [see 81 FR 28097].

Firstly, the Federal Register notice observed that “more than 260,000 Filipino soldiers enlisted to fight for the United States during World War II.”[1] The notice noted that “[e]stimates indicate that as many as 26,000 of these brave individuals became U.S. citizens.” It estimated that approximately 2,000-6,000 Filipino WWII veterans are alive in the United States today.

Secondly, USCIS recognized that the beneficiaries of approved family-based immigrant visa petitions from the Philippines often face extremely long wait-times before an immigrant visa number becomes available. For example, the chart [see here] shows the Application Final Action Dates for family-sponsored preference cases for Filipino applicants from the June 2016 Visa Bulletin [see Bulletin].

FAMILY-SPONSORED - PHILIPPINES

• F1 — December 22, 2004
• F2A — November 8, 2014
• F2B — June 1, 2005
• F3 — February 1, 1994
• F4 — December 1, 1992

With the exception of the F2A category, the wait times for immigrant visa numbers for Filipinos with approved family-based petitions are extensive.

Accordingly, we can see why USCIS decided to implement the FWVP:

1. In recognition of the brave service rendered to the United States by Filipino WWII veterans.
2. In recognition of the fact that the few surviving Filipino WWII veterans in the United States are now elderly and may wish to have their family by their side in the United States in their old age.
3. In recognition of the scarcity of immigrant visa numbers for family-based applicants from the Philippines.

MY THOUGHTS ON THE FWVP

It has been well-documented on this blog that I have often disagreed with some of the immigration initiatives forwarded by the current administration over the past couple of years [see my blog on the DAPA litigation]. However, I think the FWVP is an example of a well-reasoned and lawful immigration policy.

The FWVP policy is a fair exercise of the Attorney General's discretionary parole authority under section 212(d)(5)(A) of the Immigration and Nationality Act (INA), which provides for the discretionary grant of parole, on a case-by-case basis, where the Attorney General finds either that there are urgent humanitarian concerns or that the grant of parole would serve a significant public benefit. To be sure, it would be hard to argue against USCIS's contention that allowing for parole to be considered on a case-by-case basis for family members of elderly WWII veterans who fought bravely for this country does not serve a significant public benefit. Furthermore, in cases where the veteran is infirmed or lacking other family in the United States, USCIS plausibly argues that parole may also satisfy an urgent humanitarian concern.

The FWVP policy is a welcome initiative for a small number of elderly Filipino WWII veterans still alive in the United States and their family members who may be eligible to benefit. At the Law Offices of Grinberg & Segal, PLLC, we stand ready to assist those who may stand to benefit from the program.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

1. From 1934-1946, the Philippines was a U.S. commonwealth that was transitioning to full independence (including the period from 1942-1945 when the Philippines was under Japanese occupation).

Lawyer website: http://myattorneyusa.com

DHS publishes final STEM OPT rules

INTRODUCTION: NEW STEM OPT RULES

On March 10, 2016, the Department of Homeland Security (DHS) published a new final rule for STEM optional practical training (OPT) extensions [see rule: 81 FR 13039].

The new rule will come into effect on May 10, 2016. In addition to STEM OPT extensions, the new regulations leave intact H1B “cap gap” protection. To learn about the new regulations in detail, please read our full articles that explain the new regulations in detail:

1. New STEM OPT Regulations and Procedures [see article]
2. H1B Cap Gap Protection 

In this post, I will explain the procedural background that led to the new regulations, differences between the final version of the STEM OPT extension regulations and the final rule, and what may happen next with the pending litigation regarding STEM OPT extensions.

BACKGROUND: LITIGATION AND THE NECESSITY FOR NEW STEM OPT RULES

In June of 2015, a federal District Court held in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, —- F.Supp.3d —— (D.D.C., 2015) [PDF version] [see article] that the Department of Homeland Security's (DHS's) rules regarding STEM optional practical training (OPT) extensions were invalid on the basis that DHS had lacked justification for not putting them through notice and public comment. The District Court stayed the ruling in order to give the DHS time to promulgate new regulations in accordance with the Administrative Procedures Act (APA). The decision was stayed initially stayed until February 12, 2016, and DHS obtained two subsequent extensions to May 10, 2016.

On October 19, 2016, the DHS proposed new regulations for STEM OPT and made them open for public comment until November 18, 2015. Notably, the proposed rule extended the maximum length of a STEM OPT extension from 17 months to 24. Please read our article about the proposed rule [see article].

CHANGES FROM THE PROPOSED RULE

After submitting the proposed rule for public comments, DHS reviewed the comments and made modifications to the proposed rule before submitting the final rule. DHS listed the following changes (paraphrased from 81 FR 13039 unless directly quoted):

• Time of Accreditation: A student seeking a STEM OPT extension based on a previously obtained STEM degree must have obtained the STEM degree from an educational institution that is accredited at the time of the application for the STEM OPT extension.
• Student and Exchange Visitor Program (SEVP) Certification Required for Prior Degrees: A student seeking an extension based on a previously obtained STEM degree must have obtained the STEM degree from an educational institution that is SEVP-certified at the time of the application for the STEM OPT extension (overseas campuses of U.S. educational institutions not eligible).
• Site Visit Notifications: The DHS will provide an employer of STEM OPT students 48 hours noticed before any site visit. However, DHS may visit without notice if there is a complaint or other evidence of noncompliance with STEM OPT extension regulations.
• Focus on Training: DHS states that it has altered the proposed rule's Mentor and Training Program requirements to focus more on training.
• Existing Employer Training Programs: The rule makes exposit that employers may use existing training programs to “satisfy certain regulatory requirements for evaluating the process of students.”
• Employer Attestation: Employers will be required to attest that the student will not replace a full- or part-time permanent resident or permanent U.S. worker.
• Evaluation of Student Progress: The student and an appropriate individual in the employer's organization will be required to sign an evaluation on an annual basis, with a mid-point evaluation during the first 12-months of a STEM OPT extension and a final evaluation before the conclusion of the STEM OPT extension.

HIGHLIGHTS IN THE NEW RULES

The new rules extend the period of STEM OPT extensions from 17 months to 24. Accordingly, they increase the amount of time a student may be unemployed during the extension period and still maintain status. The rules allow students who obtain a second STEM degree at a higher level than the first (if the first was used as the basis for an extension) to apply for a second STEM OPT extension. The rule adds various regulations for employers of STEM OPT students to comply with and provisions to help ensure that STEM OPT students meet their training goals.

To learn about the new rule in detail, please see our full article [see article].

CONCLUSION

The litigation that forced DHS to promulgate new STEM OPT rules is ongoing. The plaintiffs (Washington Alliance of Technology Workers) are challenging DHS's underlying authority under the Immigration and Nationality Act (INA) to authorize STEM OPT extensions. While the litigation on the issue bears watching, students seeking STEM OPT extensions may pursue them under the new rules with confidence. We will be sure to keep you abreast of further developments on the issue here on our website.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

New Rules Regarding Teacher Category of Exchange Visitor Program

The Department of State (DOS) finalized a new rule amending existing regulations governing the Teacher category of the Exchange Visitor Program (J visas). The rule was proposed on May 2, 2013 and finalized on January 29, 2016 [see 81 FR 4945, Jan. 29, 2016]. The new provisions became effective on February 29, 2016. Regulations governing the Exchange Visitor Program are found in 22 C.F.R. 62. Regulations regarding exchange visitor teachers are found primarily in 22 C.F.R. 62.24.

We have posted a full article discussing the new rules in effect for exchange visitor teachers. You may find the full article about exchange visitor teachers here.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com

Inadmissibility for Criminal and Related Grounds

Section 212(a)(2) of the Immigration and Nationality (INA) act lists various grounds for inadmissibility on criminal and related grounds.  In limited circumstances, an alien subject to section 212(a)(2) inadmissibly may be eligible for a section 212(h) waiver.  In this article, we will summarize section 212(a)(2) inadmissibility and the rules for eligibility for a section 212(h) waiver.  To learn more, please see our full article [see article].

List of Grounds of Inadmissibility

Crimes of Moral Turpitude

212(a)(2)(A)(i)(I) – An alien who is convicted of, who admits to having committed, or who admits to committing acts that contain essential elements of a crime of moral turpitude (CIMT) is inadmissible.  There are limited exceptions.  If the offense committed was an overseas “purely political offense,” inadmissibility will not attach.  There are two exemptions listed in 212(a)(2)(A)(ii)(I)-(II).  First, if the CIMT was committed when the alien was under 18 years of age and if the alien was released from confinement (if applicable) more than 5 years before the application for immigration benefits, the alien will not be inadmissible under section 212(a)(2)(A)(i)(I).  Furthermore, there is a “petty offense” exemption if the maximum possible penalty for the crime does not exceed 1 year’s imprisonment and if the alien was not sentenced to a term of imprisonment in excess of 6 months.

Controlled Substance Violations

212(a)(2)(A)(i)(II) – An  alien who violates, conspires, or attempts to violate any law of the United States or a foreign country relating to a controlled substance (as defined in 21 USC 802) is inadmissible.

Multiple Criminal Convictions

212(a)(2)(B) – An alien who is convicted of 2 or more offenses for which the aggregate sentences to confinement were 5 years or more is inadmissible.  However, there is a “purely political offense” exception for purely political offenses committed abroad.

Controlled Substance Traffickers

212(a)(2)(C)(i)-(ii) – An alien who is or has been an illicit trafficker in any controlled substance or chemical (as defined in 21 USC 802) is inadmissible.  Inadmissibility attaches of the alien assists others in such trafficking.  The spouse, son, or daughter of such an alien who benefits from the trafficking of an alien described in clause (i) and knew or should have reasonably should have known the benefit was a product of such illicit activity is inadmissible for 5 years from the date he or she receives the benefit.

Prostitution and Commercialized Vice

212(a)(2)(d)(i)-(iii) – An alien who is seeking to enter the United States in order to engage in prostitution, or who has engaged in prostitution within 10 years of the date of seeking an immigration benefit is inadmissible.  So too is an alien who direction or indirection procures or attempts to procure, within 10 years of the date of an application for immigration benefits, prostitutes or persons for the purpose of prostitution (or receives proceeds from prostitution).  An alien coming to the United States to engage in unlawful commercialized vice is inadmissible.  Please note that while there is a waiver available for prostitution-related offenses, there is no waiver for unlawful commercialized vice other than prostitution.

Certain Aliens Involved in Criminal Activity Who Have Asserted Immunity from Prosecution

212(a)(2)(E)(i)-(iv) – An alien who is convicted of a serious criminal defense as defined in section 101(h) of the INA who asserts immunity from prosecution, departs from the United States, and does not subsequently submit to the full jurisdiction of the court in the United States having jurisdiction with respect to the offense, is inadmissible.  This inadmissibility ground generally attaches to those who assert diplomatic immunity.

Foreign Government Officials Who Have Committed Particularly Severe Violations of Religious Freedom

212(a)(2)(G) – An alien serving as a government official who was responsible for particularly severe violations of religious freedom (defined in 22 USC 6402) is inadmissible.

Significant Traffickers in Persons

212(a)(2)(H)(i)-(iii) – An alien who commits or conspires to commit (or assists in either) human trafficking offenses in or outside of the United States (as defined in 22 USC 7102) is inadmissible.  The spouse, son, or daughter of an alien inadmissible for human trafficking offense and who benefitted from such trafficking, and knew or should have known that the benefit was a product of such  illicit activity, is inadmissible for 5 years from the date of having obtained the benefit.  However, if the son or daughter of the inadmissible trafficker was a child at the time he or she obtained a benefit, the son or daughter shall not be inadmissible.

Money Laundering

212(a)(2)(I)(i)-(ii) – An alien who has engaged, is engaging, or seeks to enter the United States to engage in an offense related to laundering of monetary instruments (as described in 18 USC 1956 or 1957) is inadmissible.  An alien who is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in such laundering offenses is inadmissible.

Waiver of Inadmissibility

Section 212(h) authorizes waivers of inadmissibility for the following inadmissibility grounds described in section 212(a)(2):

• CIMTs
• Single possession for personal use of 30 grams or less of marijuana;
• Multiple criminal convictions;
• Prostitution-related offenses; and
• Departure on diplomatic immunity after having engaged in criminal activity.

A waiver may be granted for prostitution-related offenses, the alien may demonstrate eligibility for the waiver by demonstrating that he or she is rehabilitated and his or her admission would not be against the interests of the United States.

In general, if the offense in question occurred more than 15 years before the alien’s application for a visa, admission, or adjustment of status, the admission of the alien would not be contrary to the interests of the United States, and the alien has been rehabilitated.

Otherwise, an alien applying for a section 212(h) waiver who is the spouse, parent, son, or daughter of a U.S. citizen or lawful permanent resident (LPR) may establish eligibility for the waiver by showing that the denial of his or her admission would result in extreme hardship to the U.S. citizen or LPR relative.  Please see our article about extreme hardship [see article] and our article about demonstrating extreme hardship [see article].

Finally, a VAWA self-petitioner may apply for a section 212(h) waiver.

The section 212(h) waiver is explicitly unavailable to an alien who has been convicted or has admitted to committing acts that constitute murder or a criminal act involving torture, or an attempt or conspiracy to commit murder or a criminal act involving torture.

A person who was admitted to the United States as an LPR will be ineligible for a section 212(h) waiver if he or she is convicted of an aggravated felony or if he or she has not lawfully resided continuously in the United States for at least 7 years immediately preceding the initiation of removal proceedings.

Conclusion

It is important to be aware that being found to be inadmissible for criminal and related grounds may prove fatal to an alien’s future immigration prospects.  Many of the inadmissibility grounds attach for life, and section 212(h) only authorizes waivers for a select few.  If an alien is charged with a crime, he or she should consult with an experienced immigration attorney to learn about the potential adverse immigration consequences that he or she may be facing.  If an alien is seeking a 212(h) waiver, he or she should consult with an experienced immigration attorney for assistance in proceeding with the application.

Please visit the nyc immigration lawyers website for further information. The Law Offices of Grinberg & Segal, PLLC focuses vast segment of its practice on immigration law. This steadfast dedication has resulted in thousands of immigrants throughout the United States.

Lawyer website: http://myattorneyusa.com