Month: May 2009

A letter received from a Filipino World War II veteran reader raises a major concern regarding the denials of many claims for lump sum benefit. He filed for lump sum benefit of $15,000 as a US citizen veteran with the US Department of Veterans Affairs. This is a claim for Filipino Veterans Equity Compensation  passed into law on February 17, 2009 by President Barrack Obama granting $15,000 or $9,000 to Filipino World War II veterans.

Just as the news of lump sum checks being received by veterans are announced publicly, many Filipino veterans’ claims are also being denied quietly for veterans who have no records of military service with the National Personnel Records Center (NPRC) at St. Louis, Missouri.

Mr. GT was inducted in the US Armed Forces in the Far East on November 17, 1941 when he was with the Infantry Regiment Philippine Constabulary. He was a Death March survivor and was able to escape from prison. He subsequently join the guerilla forces. His last unit was with the Armed Forces of the Philippines, Recovered Personnel Division. He has proof of his honorable discharge dated July 29, 1948.

When the Immigration Act of 1990 was passed granting US citizenship to Filipino World War II veterans, he applied for naturalization. His application was approved and Mr. GT was sworn in as a US citizen in 1997.

On March 3, 2009, he applied for lump sum benefit but his claim was denied by the Department of Veterans Affairs because his name is not listed on the National Personnel Records Center (NPRC) at St. Louis, Missouri as having valid military service.

In his letter, Mr. GT states that “I am so unfortunate to learn that aside from my loyal active military service, fighting side by side with the American soldiers for the same cause of freedom then after all my service is of no recognition. I also read in the news that fifty (50) per cent of the records in Missouri were burned in 1973 that is why our record is no where to be found. With your kind assistance and consideration I am asking for your help on what to do with my lost record and I won’t be naturalized if I am not a genuine veteran of World War II.”

The problem encountered by this Filipino veteran represents the problems of a significant number of veterans who fought courageously during the war but have no actual records of their service on the list kept by St. Louis Missouri. For more than half a century there has never been a consistency in policy in regards to how they are to be treated for purposes of veterans’ benefits. When the lump sum benefit or the Filipino Veterans Equity Compensation was passed early this year, many victorious celebrations were held as if the final resolution to this issue had finally arrived. After three months, frustrated veterans who could not find their names on the Missouri list are facing new legal challenges.

Verifying Service Records

This is not the first time that the Missouri list was questioned as being an accurate source of military service for the Filipino veterans. The issue on verification had been a contested matter during the period of time when the Filipino veterans’ applications for naturalization were being processed in the 1990s.

The US Immigration and Naturalization Service (now the US Citizenship and Immigration Services) lost in the case of Almero v. INS (9th Circuit 1994) and Serquina v. US (9th Circuity 1994) when it limited the naturalization to veterans whose names were  in the Missouri list. In the Almero and Serquina case, the court ordered the INS to accept official Philippine government records instead of US Army records to prove military service for purposes of naturalization.

Inaccurate Missouri List

The Missouri list relied upon by the US Veterans Affairs do not contain accurate record of the services of Filipino World War II veterans.

Lieutenant Colonel Edwin P. Ramsey, a West Point graduate and commander of over 40,000 guerilla troops in Northern Philippines during World War II testified during the trial in Almero case. He testified that records listing the names of his troops were created under wartime conditions in which his men were greatly outnumbered by the occupying Japanese forces. According to him, his command stopped keeping accurate rosters or lists when some of the rosters fell into the enemy hands and many of those named were executed.

Shortly after the war, Colonel Ramsey testified that he participated in the reconstruction of the list but nearly half of the Filipinos who served under his command were “derecognized’ for political reasons and their records eliminated. Other records were lost in a 1973 at the St. Louis Missouri center where the records were kept.

Since the Courts ruled against limiting the list of veterans to the Missouri list and were ordered to accept official Philippine government records, the legislation on naturalization was amended in 1998 to limit the sources of military records to those listed on final roster prepared by US Army departments or those contained on National Personnel Records Center at St. Louis Missouri. This amendment practically overturned the rulings in Almero and Serquina cases.

Verification for Lump Sum Benefits

Unlike the amendment of the legislation on naturalization in 1998, the Filipino Veterans Equity Compensation or the lump sum law does not limit the sources of verifying military records. Subsection (d) of Section 1002 of the American Recovery and Reinvestment Act of 2009 clearly defines those groups that are eligible to receive lump sum benefits. The Veterans Administration should not restrict the benefits of the few surviving veterans especially if they can prove their service with documents from the executive department under which they served, including Philippine government records.

This greatest generation has been through a lot and has long been deprived of their just recognition. To limit granting the benefits to the Missouri list is again an inequitable denial of rights of the aging Filipino veterans. Another injustice that must be immediately corrected.

(Tancinco may be reached at law@tancinco.com or at 887 7177)

Raquel was married to Walter for many years. They have two children. Walter left the family home after eight years of marriage and never communicated with Raquel and her two children. Fours years after Walter’s disappearance, Raquel obtained a judicial declaration of presumption of death of Walter.

Joshua, a US citizen, filed a fiancé visa petition on behalf of Raquel and derivative visas for two minor children. Raquel was able to fly to the US on a fiancé visa with her children. Joshua and Raquel got married in California. During the adjustment of status interview, Raquel was questioned about the “death” of her prior spouse. She submitted all documents relating to the presumption of death which the immigration examiner questioned. An investigation was initiated by the USCIS in Manila and it was discovered that Walter is still alive and was living with another woman. Raquel’s application for green card was denied because USCIS found Raquel to still be validly married to his “first” husband. Raquel, thereafter, was advised to just file for Annulment of marriage in California and then remarry Joshua.

Relevance of Marital Status

Many immigration benefits that are applied for depends on the marital status of the visa applicant. Aside from obtaining green card through marriage to a US citizen, there are other benefits where marital status is relevant. For petitions under first preference category (or petition by US citizen on behalf of adult unmarried children) and second preference category ( petition by green card holder parents on behalf of adult unmarried children) the beneficiary child should remain “unmarried” until the prospective immigrant reaches the US and obtain the green card. Thereafter, a marriage may be entered into without jeopardizing the validity of the green card. If it is discovered that there was a civil marriage or a prior marriage that was not dissolved or annulled the immigrant visa shall be construed as improperly issued and thus subject to rescission in deportation/removal court.

The same situation may arise also in petitioning stepchildren of US citizens. If the marriage between the US citizen stepfather and the natural mother is void because of a pre-existing marriage that was not dissolved, then no immigration benefits will be conferred to the stepchildren.

Self petitioning widows of US citizens are also at risk of being denied visas if it is discovered that there was a prior marriage that was not annulled by the petitioning widow before marrying the US citizen spouse.

Termination of Prior Marriages

When an individual marries more than once, the party applying for immigration benefit must show evidence of the termination of the first marriages as well as the existence and validity of the second marriage. The person seeking the immigration benefit of a marriage has the burden of establishing the validity of the marriage.

Proving that the prior marriage is terminated may either be through court documents granting annulment or dissolution of the marriage. The USCIS generally recognizes annulment granted in a foreign country such as in the Philippines, as a matter of comity, as long as that particular court had jurisdiction to grant the annulment.

Establishment of the validity of dissolution can be fairly complex requiring the consular or immigration officer to become familiar with the type of foreign divorce in the country where it was obtained. In the Philippines where divorce is not recognize, Filipino nationals seeking immigration benefits based on subsequent marriage must prove that prior marriages have been declared validly annulled. The same goes with those individuals under the first and second preference category where they should prove that there was no marriage at the time they were petitioned.

Marriages Void From the Beginning

There is an important distinction between void ab initio and voidable marriages for purposes of immigration benefits. Annulment decree may state that marriages are void from the beginning (ab initio) and that the effect of the annulment decree is like there was no marriage that occurred. On voidable marriages, they are considered valid marriages until they are declared as void by the court.

The immigration authorities usually do not question the validity of divorce where it was obtained where one of the parties was physically present with the court’s jurisdiction. Collateral attack on divorces is beyond normal adjudication precluded by the principle of comity.

It becomes complicated for immigration examiners because there are certain cases where annulment decree is not given retroactive effect even if it is void ab initio. This is when there are cases of fraud, misrepresentation or manipulation of the immigration law. When no retroactive effect is given to the annulment, an unexpected consequence is usually faced resulting in denial of visas.

Truth about Marital Status
    
Marital status is a key component in obtaining visas. First and second preference immigrant cases and marriage to US citizens are almost always investigated for prior marriages. The red flag is raised especially when the visa applicant has children. The birth certificates of the children usually have dates of marriage of parents and further investigation is conducted until the truth is discovered.

There is a growing trend of denying petitions on technical and mechanical grounds. Careful attention to minor factual discrepancies in documents submitted, correcting them when possible or explaining them when not possible is advisable than later on reacting to adverse consequences. The truth will come out and they will eventually discover what you have done no matter how much dirt you put over it. If it is not discovered soon, it will come out in the most unexpected way.

(Tancinco may be reached at law@tancinco.com or at 887 7177).

Shirley was ten years old when she migrated to the US through the petition of her adoptive parent. When she reached twenty one years old, her adoptive mother passed away. Shirley is single and has no children of her own. At first, she thought of petitioning for her biological mother. Unfortunately, she was told that she could not petition her biological mother because the parental relationship was terminated at the time she was adopted by her US citizen adoptive parent.

As her way of giving back to her family back in the Philippines, Shirley, who is now a US citizen and gainfully employed decided to adopt the two minor children of her brother. She went through the same adoption process in court and an order of adoption was successfully obtained. Thereafter, a petition for her adopted children was filed right away after receiving the adoption decree. The US Citizenship and Immigration Services denied the petition very recently considering that Shirley has not met the two year residency requirement for purposes of petitioning adopted children. Shirley is wondering how she will be able to fulfill this requirement. In the meantime, she had exercised parental control and custody over the minor children by sending them to school and providing for their monthly support.

Adopting A Relative

An adopted child is treated as a child for immigration purposes if (1)the child was adopted while under the age of sixteen years and (2)the child has been in the legal custody of, and has resided with , the adopting parent(s) for at least two years. It is irrelevant whether the legal custody and residence take place before or after the adoption.

Legal custody for two years requires either final adoption decree from the court or any official document in the form of a custody award by a court or recognized governmental entity.

In the case of Shirley, she should be able to prove that the she adopted the children who were under sixteen years old and that she has legal and physical custody of the children for two years.

Proving Physical Custody

Unlike in orphan adoptions, physical custody of the adopted child is required for relative adoption. The two years legal custody and residence must take place either before or after adoption.

The adoptive parent is required to live with the adopted child for at least two years. It is not enough that she lives with the adopted child. It must also be proven that she exercises strong evidence of parental control especially if the adopted child lives in the same household as the biological parent.

Evidence that may be presented to show valid two year physical presence is met include ownership of property where the child resides, provision of financial support and day to day care, assumption of responsibility for important decisions in the child’s life and physical living arrangements.

Physical presence with the adopted child need not be continuous. It could be met also even if there is a break in residence as it is computed in the aggregate. The two year residency requirement must be completed before the adopted child reaches the age of twenty one.

Realities of Compliance

Filipinos are known to have close family ties and extended families. This culture must be taken into account in describing the relationship between the adopted parent and the child. Until the child migrates with the adopted parent, this child usually lives with the biological parents or with relatives.  The standard of proving that the adopted parent has primary control over the adopted child in that household is really high. Satisfying this specific requirement of primary control has always been really challenging.

In addition, willing adoptive mothers from the US have extended their generosity in raising children of their siblings or relatives by filing petition for their adoption and their later on for their immigration petitions. No matter what the bona fide intention is for the adoptive mothers, the two years physical requirement remains a bar for them to petition their successfully their adopted children.

During this economic downturn where unemployment rate is at its highest and where many businesses suffer financial loses, more and more employees are finding it difficult to obtain leave or vacation from work. The most that a regular employee may spend for vacation is approximately two to three weeks each year. For them to spend two years off from work in order to meet the two years physical requirement is risking their employment status. Of course, those on retirement or who are unemployed may have no problem meeting the two years physical requirement.

There are many adoptive mothers who find themselves in the same predicament as Shirley. The desire to give their adopted children a better future in the US remains elusive. The current economic crisis affected almost sectors of society including the many mothers who wants to be their adopted children. Not only are the businesses, the homeowners or bankers are affected. Those impacted are also thousands of mothers who are separated from their children not just because of the lengthy process of petitioning relatives but also of their inability to meet the legal requirement of physical residence.

Despite the many challenges, adoptive parents especially the mothers are determined to live with their adopted children and to give them a better future. Their responsibility towards their adopted children was not imposed on them but was a conscious decision from their heart to extend love and care to their adopted children. For this, we commend all adoptive mothers for all the many sacrifices they endure just to better the lives of their children. This goes also to those who played the roles of mothers in their lives to include the single mothers, father-mothers, straight moms, gay moms who have children.  To all the mothers who had exhibited unselfish love towards their children, we honor you for all that you do and admire your dedication to improve your children’s lives. Happy Mother’s Day!    

(Tancinco may be reached at law@tancinco.com or at (02) 887 7177)

This is a true story of Nimfa who was a nursing graduate from a popular university in the Philippines. Right after graduation, she had the opportunity to go to the US to visit her sister. She used her B1/B2 visitor visa to enter the US. After her authorized stay expired, she continued to stay in the US and tried to find employment.

In 2001, Nimfa found a job as a “caregiver” at an elderly residential home in Los Angeles. She worked really hard and exhibited diligence and efficiency in her job as a caregiver. Her employer, Bobby, also a Filipino national but a naturalized US citizen, decided to promote her as the facility administrator. This employer also agreed to petition Nimfa for a green card. However, since the process took a number of years, Nimfa was actually working without proper legal documents.

One day, when Nimfa was out on a break from work, one of the elderly patients became very ill. Nimfa ran back to the facility and attended to the patient. After two days, the patient was rushed to the hospital and died. The relatives to the patient were outraged with the facility administrator and felt that the patient was a victim of elderly abuse and criminal negligence. It was discovered that there were medical conditions of the deceased patient that were not properly attended to by the employees in the facility. Nimfa was held accountable.

A criminal case was filed against Nimfa as the administrator of the facility. She was also detained at the County Jail while they were conducting an investigation on the death of the patient. She spent more than eight months in jail for Elderly Abuse and could not afford an attorney to represent her. The employer who owned the facility denied having anything to do with Nimfa. He did not extend any assistance at all and worse, the petition for Nimfa was dropped. Her employer stayed out of the criminal case and gave false testimony against Nimfa. After one year, Nimfa was released from the county jail. As soon as she was released, she was arrested again by the Immigration and Customs Enforcement for being an undocumented alien. Nimfa indicated to her attorney that she wish to return home to Manila to be with her family. She has not seen her family for nine years. She is now scheduled to be deported back to Manila anytime soon.

Helping or Pinning Down

Of the12 million undocumented immigrants in the US, there is no official count on how many Filipinos are part of this population. We all know that majority of the Filipinos who happen to be undocumented or TNT, came in legally until such time that their authorized stay expired. The decision to become an unlawful immigrant happens for many different reasons but mostly economic.

A significant number of  Filipino immigrants in the US  have succeeded in their chosen fields and have contributed to the growth of  the US economy.  In the health care industry, many Filipinos are not just caregivers but also business owners who operate their own board and care facilities or residential care facilities either for the elderly or developmentally disabled individuals.

It is not surprising then that Filipino care home owners hire Filipino workers for their facilities. Those who are sincere in helping legalize the status of their workers do file appropriate legal documents with the US Department of Labor or with the US Citizenship and Immigration Service. However, there are also sad cases where the employers exploit the vulnerability of their petitioned workers. They are sometimes paid low wages, work long hours without break, and burden their employees with unnecessary responsibilities. The workers on the other hand feel beholden and are compelled to put up with the abuses.

In the case of Nimfa, she worked hard and diligently for the employer. She worked overtime and hardly took vacations. Just when she thought that her employer would be compassionate and helpful during a crisis, it was also the moment she was unexpectedly abandoned and left to suffer alone.

If indeed there was a finding of criminal negligence on the part of Nimfa, it should have also been attributed to her employer.  However, not knowing the system and lacking in resources, Nimfa became a victim. Nimfa’s Filipino employer, on the other hand, was able to relieve himself of liability at the expense of  Nimfa..
 
The case of Nimfa is a classic case of  Filipinos abandoning Filipinos. It is the opposite of bayanihan and which is I would refer as  “laglagan” or dumping a person at the worst possible time.  Though rare, these occurrences are not unusual.

Criminal Case and Immigration

Immigration law provisions relating to issuance of green cards are very clear when it comes to criminal aliens. In Nimfa’s case,  she was charged with an aggravated felony and is deportable. Her deportation will also bar her from returning to the United States with limited waivers available..

Employers Moral Obligation

It is very difficult to assess whether an employer’s action in putting the vulnerable employee in a worse situation measures up to the standard of an upright person worthy of respect from his community. Without being judgmental, it is worth mentioning that TNTs may not have the proper documentation to reside and work in the US but they have their human rights which we all must respect. Employers have legal rights but this also comes with a moral obligation to treat their employees with fairness and compassion.

(Tancinco may be reached at law@tancinco.com or at 887 7177)