Month: September 2009

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SideBar

Can My Home be Foreclosed Pending LoanModification?

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Maria owns a home in Daly City, California. She approached a company, which advertised its services for loan modification.  She was advised by the person handling her case not to pay her monthly mortgage payments anymore. She was told that her unpaid mortgage bills would be packaged into the new modified loan.  Her unpaid mortgage then accumulated for a few months.  Eventually, the bank foreclosed her property and she is now being evicted. She was very surprised with the foreclosure as she was led to believe that the bank would not foreclose on her home.  What lesson can we learn from this?

The existing mortgage loan between the homeowner and the bank is a CONTRACT. It is a valid and existing contract with obligations and rights, as well as remedies available to both parties for violations of the contract terms. One of the remedies that the bank has when a homeowner fails to pay the mortgage payment is, of course, to foreclose on the property should the homeowner fail to keep up with the mortgage payments.    

The loan modification process, on the other hand, is really nothing more than just a renegotiation of that existing loan contract between the homeowner and the bank. Hence, unless the bank agrees to modify and the homeowner signs that modified loan agreement, the terms of the original home loan is still enforceable.  All remedies available, including foreclosure, would still be available to the bank should a homeowner fail to pay the mortgage premium.

For a loan modification to be approved by a bank normally the homeowner has to show financial hardship. It is also usual (although not necessary) for the homeowner to be a couple of months behind in mortgage payments.  If the bank agrees to a loan modification then normally the accumulated unpaid mortgage will be included in the loan modification agreement and the accumulated unpaid mortgage will be spread out over the life of the new loan.   The risk, however, is that should the loan modification process be unsuccessful, then the homeowner will already be a few months behind in mortgage payments. It is oftentimes, very hard for homeowners to catch up with a few months of unpaid mortgage.  Foreclosure undertaken by the bank and enforced on homeowners with several months of unpaid mortgage should therefore not be a surprise.

As homeowners, we necessarily do everything that we can to save our home. We do hope and that the modification process will be successful as our delinquent mortgage payments can be packaged in the modified loan to be paid out over the life of the new loan making it more affordable for us.  However, there is really no guarantee that a loan modification application will be approved by our lender   If, for any reason whatsoever, our loan modification application is not successful, then we can expect the bank to enforce its rights by foreclosing on the property against homeowner behind in mortgage payments.
 
(DISCLAIMER: material presented above is intended for informational purposes only. It is not intended as professional advice and should not be construed as such. Rey Tancinco is a partner at Tancinco Law Offices, a professional corporation with offices in San Francisco, Vallejo, and Manila. The law office website is at: tancinco.weareph.com/old.  Rey Tancinco can be contacted at (800) 999-9096 or (415) 397-0808 or via email at: attyrey@tancinco.com.)

Categories
Immigration Round Table

Foreign Worker Faces Deportation after Being Terminated by Employer

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Dear Atty. Lou,
 
I came to the U.S. on an H1B in July 1999.  My family arrived here in the US in January 2000 as H4 visa holders.  Unfortunately, the company who petitioned me laid-off employees, including me due to company’s lack of budget  

After six months, I found a new employer who is willing to sponsor me.  I was able to file a labor certification prior to April 30, 2001 deadline to be covered by 245i.  After two years of waiting for the labor certification approval, we got a letter from Labor Dept seeking further evidence to show my salary wage.  It turned out that my lawyer filed a wrong category for my position with a higher salary than what I am receiving that time. Since the lawyer didn’t want to contest and admit their faults with the Labor Dept., my employer was prompted to withdraw the application to correct and then refile it again,
 
I terminated my first lawyer and hired another one that would do the right filing for me and my dependents.  My previous lawyer didn’t file me a new H1B visa since he said that filing a labor certification would be sufficient enough.  Then on December 2005, I was arrested by USCIS for overstaying and working without permit, just the same time when I received my labor certification approval.  They didn’t detain me but served me a Notice to Appear or an NTA.  I’m now in removal proceeding for 3 1/2 years with the adjustment of status as my relief.
 
Since the first day in court, the Immigration Judge always grant me continuance awaiting approval of my I140 which also lasted for 3 years since Jan 2006 due to background checking as what we were told.  Even though I’m in court, my lawyer was able to file my Adjustment of Status application when the visa became current last July 2007.  I already received my EAD card and have already renewed it. 
 
My I140 was only approved last April 2009 after filing a mandamus action in court.  Upon approval of the I140, my lawyer filed a motion to close the case in order for my dependent to file an adjustment of status application even though the visa was unavailable.  The motion was denied because of unavailable visa and was granted continuance until the next hearing which will be on Oct 9, 2009 awaiting the availability of the visa.  Come Oct 9, and my priority date is not current, the judge said that we should seek the relief of voluntary departure.  Oct visa bulletin states that the priority date is June 1, 2002.  Mine was Dec 16, 2003.
 
My lawyer said not to worry as we will make an appeal with the BIA.  Atty. Lou is appeal the only option for my case?  Can he not file for a motion to continue awaiting my priority date to be available?  It seems unfair that we would be sent home just because the visa retrogressed, even though my application was filed properly.  What shall I do? The judge granted me continuance awaiting my I140 approval, why can’t he grant that now when the only thing we’re waiting is the visa availability?  What are our chances not to be sent home?
 
Atty., please help me and enlightened my confusions.  Your opinion and suggestions will be very much appreciated.
 
Confused and Desperate

Dear Confused and Desperate,

Filing a labor certification will not actually toll the expiration of your H1B nonimmigrant visa. There was an error in your belief that the filing of the labor certification will be in lieu of your extending your H1B visa.  You should have filed a timely extension of your H1B to avoid being taken into ICE custody.

You mentioned that your priority date is December 16, 2003 and I assume that you fall under the third preference employment based category.  In July 2007, additional visas were issued and that the third preference category became current. This means that you were permitted to file for your adjustment of status.  Unfortunately, until your visa priority date is current this adjustment of status may not be approved even if it has been pending for a long time.

If you are not in removal proceedings, you may be in the US with an employment authorization awaiting for your priority date to become current. However, since you are in removal proceedings, the immigration court is bound by pertinent rules that require them to timely adjudicate the cases they have pending before them. They can exercise their discretion in granting a continuance on your case which it did while awaiting for the retrogression to be lifted and for the visa priority date to become current. The number of times you may postpone the case is limited and if you have been asking for a continuance on your case since you were put in proceedings three years ago, the immigration judge may have no choice but to require you to seek a different relief which is “voluntary departure.”

Appeal to the BIA is a right you may have if the Immigration Judge denies your adjustment of status based on the lack of visa availability. You should raise valid reasons on your appeal. Continuing the case until retrogression is lifted may be granted only as a matter of discretion. Now if pending appeal, the visa becomes available, then you may move to re-open your case and have the adjustment of status re-adjudicated again.

If you seek for voluntary departure, you have to speak with your attorney about your chances of being able to return if the visa becomes available. If there is a period of unlawful presence of more than six months, you may have difficulty in returning if you depart voluntarily.

I understand the stress of undergoing removal proceedings but I do not believe that you are in dilemma. You may exercise your right to appeal up to the judicial courts if you have to. I hope all these information is helpful.

Atty. Lou

*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com
 

Categories
Updates

Study Find that Less Immigrants Applied for U.S. Citizenship Last Year

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The number of immigrants that applied to become U.S. citizens shrunk 62
percent last year, due to the rise in costs associated with
naturalization. In 2007, the costs for naturalization increased from
$330 to $595 (with an additional $80 fingerprinting fee). Prior to that
rate increase nearly 1.4 million people filed applications in 2007.
This created a backlog that almost tripled the time it took to process
these applications.

Last year, however, only 525,786 people applied for naturalization, the
lowest number since 2003. In a report released by the National Council
of La Raza, a well-known Latino advocacy group, it is stated that
“eligible applicants face mounting economic pressures that threaten to
place naturalization out of reach.”

The Council suggests that the government should look for ways to
minimize the cost of processing these applications for those with
economic hardship.

Categories
Global Pinoy

What It Takes to Denaturalize a US Citizen

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One of our readers sent this email several times requesting that I respond in my column regarding the issues of submitting false documents to obtain US citizenship. Interestingly, she mentioned the falsity in detail that involves not just US immigration service but also some Philippine government agencies.

Dear Atty. Lou: I read your column in the inquirer.  Can you write me a column about a falsification of information to the US government and ended up becoming a US citizen?

Francis (not his real name) was a Chinese citizen with Alien Certificate of Registration (ACR) number.  His parents “deceived” the Philippine government that they are Filipino citizens even if they are Chinese citizens. They didn’t bother to pay yearly ACR dues.  Francis’ birth certificate stated he is a Chinese by birth. When he was studying in elementary, he just go to their family priest asked him to sign permission slip to enroll instead of getting study permit.

When he study in College, he will have to go to their family Compadre  in immigration and give few hundred pesos and he get a Birth Certificate and correction in his birth certificate that his father is a Filipino and that he is a Filipino even has Masteral degree.

He even went to work in San Miguel and after that CIS in Meralco.  Again if the company asked for his birth certificate, he will go to their family Compadre in immigration for correction in his BC  that he is a Filipino.

Francis was able to obtain a working visa to go to the US to work as a programmer for a US company in the mid-90s. He used his Filipino passport which he obtained using a false Filipino birth certification again by paying someone to issue him this passport.

After a few years working in the US he filed an application to file for his immigrant visa through his employer. As part of the application he attached his birth certificate as a Filipino citizen even if he is a Chinese citizen.
 
There are numbers of Chinese who may have gotten Filipino passports for travel purposes.  I even have one and  use a Filipino last name just to go abroad for vacation so that I don’t have to pay a lot of travel taxes  but when it comes to going to US , I can’t used this kind of passport because I might be deported .
 
But for Francis he used it to fool the US government that he is a Filipino. During the early 90s it is very easy to get Filipino passports without a BC attached and it is also easy to get a BC with change of citizen and paying higher price to get the Chinese last name for a Filipino passport and cheaper if it is a Filipino last name. With him, everything matches with his Filipino passport. This year he applied for naturalization to become an American Citizen. Is there a requirement to submit a birth certificate when applying for American Citizen?
 
What are the consequences of him submitting falsified documents to the Citizenship and Immigration Service during the green card application and naturalization application? If he is a US citizen now, may he still be held liable for submission of false documents?—Thanks, EL

Removal or Denaturalization

Fraud arises in the contexts of inadmissibility, removal or denaturalization situations. A green card holder who is discovered to have obtained his immigrant status through fraud is subject to deportation or removal proceedings based on fraud and misrepresentation. This will require proof that the misrepresentation was material to obtaining the status.

Willful misrepresentation is defined in FAM as simply a false misrepresentation, willfully made, concerning a fact, which is relevant to the alien’s entitlement. Not all misrepresentations or concealment will constitute fraud. It depends in what context is arises.

In the case of Francis, the allegation of “fraudulent” passport indicates that he concealed his real nationality. However, since he is now a US citizen, the US government has the burden of proving that the naturalization to US citizenship was procured through fraud and misrepresentation. In the Kungys v. United States 485 US 759 case, the Court determined that the misrepresentations made in the visa application process were not material to the naturalization process, and that the misrepresentations in the naturalization proceeding of the date and place of birth were not in themselves relevant to the naturalization process and were thus not material.

The revocation of naturalization is called “denaturalization” proceedings. This may be initiated against a naturalized US citizen if statutory grounds for its revocation exist. One of the grounds for denaturalization is the “illegal procurement or concealment of a material fact or by willful misrepresentation”.

Denaturalization may occur in three ways (1) through a court proceeding; (2) through an administrative proceeding and as a (3) result of a criminal conviction for knowingly procuring naturalization by fraud where the sentencing judge strips the person of his or her citizenship.

The Department of Homeland Security has the authority to reopen naturalization 8 CFR Section 340 if the application is granted in error. DHS must prove that the evidence was not known at time naturalization granted. The US prosecutor may also initiate federal criminal against Francis if the evidence are beyond reasonable doubt that he had indeed defrauded the US immigration by submitting false documents.

Considering US Department of Homeland Security’s restrictive policy against fraud, this agency is mandated to go after fraudulent applicants even to the extent of revoking a naturalization certificates. The email sender may just be speculating or may have proof that indeed Francis engaged in fraud in obtaining immigration benefits. Whatever it is, proving fraud in denaturalization proceedings requires a very high standard of proof.

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

Categories
Updates

E-Verify Now Required by Law for Federal Contractors and Subcontractors; USCIS Publishes Supplemental Guide on the Program

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USCIS has just published a supplemental guide for federal contractors
on the E-Verify system. The guide, published on September 8, 2009, is
available online at:
http://www.uscis.gov/USCIS/E-Verify/Federal%20Contractors/Supplemental%20Guidance%20for%20Federal%20Contractors%20082709%20FINAL.pdf

USCIS’ rule that all federal contractors and subcontractors are
required to use E-Verify, the government’s online portal to confirm the
identity and employment authorization of employees, went into effect on
September 8. The 22-page supplemental guide provides guidance on a
range of topics for contractors, including background information on
E-Verify and federal legislation related to the program, detailed
instructions for verifying new and existing employees, instructions for
how to verify your workforce, information on contracts, exemptions and
exceptions, and information for subcontractors and independent
contractors and affiliates.

The E-Verify program and legislation related to it have been fraught
with problems. Many groups, including the U.S. Chamber of Commerce and
other national trade organizations, have been quite vocal in their
opposition to the program. The program, however, is now active and
required for use by all federal contractors and subcontractors, with
the exception of a few exempt groups.

Categories
SideBar

Can Bankruptcy Eliminate All My Debts Or Only Some?

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The term used in bankruptcy court to mean elimination of a debtor’s obligations is a “discharge”.  A discharge in a bankruptcy filing releases the debtor from personal liability for certain debts. This means that the debtor will no longer be legally required to pay for debts that are discharged. The discharge is a permanent order from the bankruptcy court prohibiting the creditors from taking any form of collection action on the discharged debts.
    
So, which of debtor’s debts can be discharged and which debts cannot be discharged? Can ALL of a debtor’s debts be discharged?  
   
Most of an individual’s debts can be discharged in a bankruptcy filing. These debts that are ALWAYS discharged would mostly consist of the following:

(1) Credit card debts – the vast majority of bankruptcy filers are trying to get rid of credit card debts they can no longer afford to pay. Luckily, bankruptcy gives these debtors a new chance to start over again with a zero balance instead of being saddled with a negative balance.
(2) Medical bills – many people who have unexpected medical conditions which result in huge medical bills that are unaffordable. Millions have no medical insurance and many of us are just a sickness away from being obligated with medical bills we cannot afford.
(3)  Lease or contractual obligations – obligations under lease agreements, or contractual obligations (to buy, sell, pay, etc) will be converted into dischargeable debts in a bankruptcy filing and can be discharged.
(4) Lawsuit judgments – lawsuits are mostly about money judgments. If you are unable to pay for these money judgments, they can also be discharged in bankruptcy.
(5) Personal loans and promissory notes – money you borrowed with promissory notes or even with just oral promises are almost always dischargeable    

There are, however, different classes of debts.  One of these classes of debts is NEVER discharged. You will continue to owe on these debts even after bankruptcy filing. This class of non-dischargeable debts consists of the following:

(1)  Fines, restitutions and penalties that a federal, state or local government has imposed to punish you for violating a law.
(2)  Domestic support obligations such as child support or alimony
(3)  Certain tax debts
(4)  Intoxicated driving debts
(5)  Certain condominium or homeowner association fees
(6)  Loans from a retirement plan
(7)  Debts from a previous bankruptcy which were not discharged

There is also another class of debts that would be discharged in a bankruptcy filing unless the creditor successfully objects to the discharge. This class of debts would consist of the following:

(1)  Debts incurred through fraud or Malicious acts
(2)  Debts from a false written statement about your financial condition
(3)  Recent debts for luxuries where a creditor runs up his debts for luxury goods or services within 90 days before filing for bankruptcy
(4)  Recent cash advances within the 70 days before fling for bankruptcy
(5)  Debts from embezzlement, larceny or breach of fiduciary duty
(6)  Debts to creditors not listed in the bankruptcy filing 

There is also a certain class of debts that are not discharged unless the debtor can prove that he is within the exception. This class of debts is the following:

(1)  Student loans – there are certain conditions attached to the discharge of a student loan. Generally, the debtor pleads poverty based on current income and expense; his current financial condition is likely to continue for a significant period; the debtor has made good faith effort to repay the debt.
(2)  Regular Income taxes – certain income taxes can be discharged in bankruptcy if you meet certain conditions.
 
The main purpose a debtor files for bankruptcy is to get a discharge from debts he can no longer afford to pay. Therefore, to understand exactly what bankruptcy can do for a debtor, one needs to know which, if any, of the debts will still be owed after the bankruptcy case is over as not all debts will be automatically eliminated in a bankruptcy filing. 

(DISCLAIMER: material presented above is intended for informational purposes only. It is not intended as professional advice and should not be construed as such. Rey Tancinco is a partner at Tancinco Law Offices, a professional corporation with offices in San Francisco, Vallejo, and Manila. The law office website is at: tancinco.weareph.com/old.  Rey Tancinco can be contacted at (800) 999-9096 or (415) 397-0808 or via email at: attyrey@tancinco.com.)

Categories
Updates

US and Mexico Work Together to Create New Cross Border Communications Network

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Earlier this week, the Departments of Homeland Security (DHS) and State
(DOS) announced that senior officials of the United States-Mexico
High-Level Consultative Commission on Telecommunications (HLCC) have
just signed a bilateral agreement that will support the creation of a
new cross-border communications network for law enforcement and public
safety officials to use to strengthen border security.

This agreement, signed on September 2, established a bilateral working
group in which DHS and Mexico’s Secretariat of Public Security (SSP)
will coordinate the installation and operation of the communications
network. Participating safety and law enforcement officers will be able
to coordinate cross-border collaboration on incident response and other
aspects of law enforcement through voice, data and video means.

Categories
Updates

Federal Contractors and Subcontractors Required to Use E-Verify As of September 8

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After a number of legal hold-ups, the E-Verify system is soon going to
be a required system for the verification of employee eligibility
verification for federal contractors and subcontractors. Effective
September 8, 2009, all companies with contracts with the federal
government and their subcontractors will be required to use E-Verify to
verify the employment eligibility of their employees. E-Verify compares
information entered into the I-9 Employment Eligibility Verification
Form against data in federal government databases.

The E-Verify system is free to use and was created by the Department of
Homeland Security in partnership with the Social Security
Administration.

Legislation requiring the use of E-Verify extends the use of the
E-Verify system to “covered federal contractors and subcontractors.”
This includes all contractors that have received funding from the
American Recovery and Reinvestment Act. All companies that receive
federal contracts after September 8 will be required to enroll in the
E-Verify system within 30 days of the contract award date. All new
hires, regardless of whether these employees will work on the federal
contract(s), will need to have their eligibility confirmed by the
E-Verify System.