Month: January 2010

Categories
SideBar

Do I Need A Will or A Living Trust?

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A will is used to distribute properties to beneficiaries and to name guardians for your minor children. If you don’t have a will and you leave properties, these will be distributed and divided among your beneficiaries based on what your state law dictates. Furthermore, if there is no surviving parent, the court will also determine who the guardian of your minor children will be. The courts will make these decisions for you. Hence, for those of us who do not want these decisions made by the courts, it is in our interest to make plans for these eventualities.

When a person passes away and there is a will, the will has to be probated in court. The purpose of a probate proceeding is to verify the authenticity of the will after which the court will appoint the executor of the will who will then distribute the properties in accordance with the wishes of the decedent. If there are minors, the court may also appoint guardians for these minors in accordance with the decedent’s wishes.
The will may also specify funeral, burial and other last wishes.

As a probate proceeding is done in court, it is a public record. Hence, if privacy is an issue for an individual then a living trust should be considered as an alternative.
    
A living trust, same as a will, is used to transfer properties to beneficiaries. However, a living trust is different from a will in that the living trust is not subject to court probate. A living trust is private and only the parties involved need to know about it or the contents thereof. Likewise, a living trust is also different from a will in that a living trust takes effect immediately while you are alive but a will takes effect upon the death of an individual.

Living trusts were first used in 16th century England when kings wanted to limit land ownership by overseeing the distribution of property when landowners died. Hence, to avoid disclosure of their landholdings, people set up trusts with the Church in order to bypass the king. Landowners simply deeded their properties to the Church with the promise that the Church would grant the land back to their heirs when a landowner died. Today, living trust are used basically for the same purposes: to hold properties for minors, to allow properties to be held by the owners before being distributed later on when the owner passes away, and, to avoid court oversight of the process of transferring an individual’s estate to the heirs. Today, living trust, are likewise used as tax planning tools to avoid and/or minimize estate taxes.

In a living trust, the individual transfers his assets to a trust, which can then be managed by the individual himself. Should the individual be incapacitated or pass away, there will be a successor trustee who can manage the properties and/or distribute the properties according to the wishes of the decedent. Joint living trusts are also possible for spouses. The assets are simply combined and put into a single trust document.

The legal term for dying without a will is dying “intestate”.  If you do not specify through a will or a trust who will receive your property, it will be distributed according to State law. Normally, it would go to your spouse and your children in a certain percentage distribution dictated by state law. This may or may not be what you want. Also, if there are minor children and there is no surviving parent, the state can appoint someone you don’t trust as a legal guardian of your children. Also, if you fail to appoint someone to carry out your final wishes, the court may appoint anyone to be the administrator of your property, which may involve fees at the expense of your estate.

Living trusts or wills or a combination of both may or may not be useful for everyone depending on the properties they own, the value of these properties, minor children (if any), and the way they want to distribute their assets after their death.

(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

Secure Communities Initiative Implemented in Two New California Counties

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The Secure Communities Initiative has just been deployed in two new
counties, both in California. Beginning last Tuesday, law enforcement
agencies in Santa Barbara and San Luis Obispo counties became a part of
the initiative, that gives them access to electronic booking machines
that check the digital fingerprints of arrested persons against the FBI
criminal history records and the Department of Homeland Security’s
(DHS) immigration records. If there is a match to DHS data, Immigration
and Customs Enforcement (ICE) is informed and, when needed, will become
involved to ensure that criminal aliens are not released back into the
public.

“Secure Communities provides local law enforcement with an effective
tool to identify dangerous criminal aliens,” said Marc Rapp, Acting
Secure Communities Executive Director. “Enhancing public safety is at
the core of ICE’s mission. Our goal with Secure Communities is to use
information sharing to prevent criminal aliens from being released back
into the community, with little or no additional burden on our law
enforcement partners.”

More than 108 regions in 15 states currently participate in the Secure
Communities initiative. ICE plans to implement the initiative
nationwide by 2013.

Categories
Global Pinoy

Severe Penalty for an Impostor

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Joan applied for a Philippine passport five years ago. Her application was denied by the Department of Foreign Affairs as a current passport was already issued to her. Joan was surprised, as she had never applied for her passport before. This was her first time to try to apply for one. She found this very strange and made further inquiries. Joan later found out that a certain Marjorie assumed her identity and got a passport in Joan’s name.

Marjorie got an immigrant visa from the US Embassy in Manila using the name of Joan.  Sometime in 2003, Joan had a petition filed for her as a derivative of her father’s petition. When the immigrant visa of Joan and her father was ready for processing, Joan’s father died. The family was informed that with the death Joan’s father, Joan also lost the chance to get her immigrant visa. Joan thereafter did not bother to apply for her immigrant visa.

Unknown to Joan, there was an unscrupulous individual, Mr. Fixer, who was able to obtain the documents relating to the immigrant visa petition of Joan’s family. Mr. Fixer sold these documents containing the visa approvals to Marjorie and to a certain Morris. Instead of the real Joan and her father, the impostors Marjorie and Morris went to the US embassy interview and presented themselves as Joan and Joan’s father.  Mr. Fixer was paid half a million pesos for the immigrant visas. After the interview, Marjorie (now assuming the name of Joan) and Morris (also assuming the identity of Joan’s father) obtained their immigrant visas. They then both migrated to the US under their assumed identities.

Both Marjorie and Morris became green card holders under their assumed names. In the meantime, the real Joan found out about her identity theft and submitted a complaint to the US Embassy. An investigation was then conducted. Both Marjorie and Morris were eventually taken into custody in the United States and are now facing criminal charges.

Assumed Identity

Identity theft is a serious criminal offense. Unfortunately, there are many victims and perpetrators of identity theft among Filipinos. This type of crime does not only arise from an immigration context. We have also seen this happen in claims for veterans’ benefits as well as in retiree’s pension benefits. The victims do not realize that their identity has been stolen until they encounter an unusual rejection of their lawful claims. Some victims also discover for the first time that their identities have been stolen when their credit reports show that debts are listed without having incurred these debts.  

Too Good to Resist

In the case of Marjorie, she informed me that she was aware of the fact that she was assuming another person’s identity. A certain ‘Mr. Fixer’ offered her an opportunity to go to the United States in less than two months. She said that this offer was too good to turn down, as her own petition would take a couple more years. Mr. Fixer told Marjorie that ‘several’ individuals have already used assumed names to enter the US and that this was not going to be unusual. Now, Marjorie says: “Maybe, it was my desire to come to America that motivated me to grab this opportunity. I regret the decision I made. I wish that I had never agreed to assuming the false identity.”

Marjorie admits that she was not at all comfortable carrying the identity of Joan. She had an identification card, a social security number and a green card in the name of Joan. She continued the ‘fraud’ as that was the only way for her to stay and work in the United States.

After five years, Marjorie met and married her US citizen husband. They now have a three-year-old child. A few weeks ago, the Immigration and Customs Enforcement special agents and federal police officers picked up Marjorie from her home. She was incarcerated and is now facing federal criminal charges. Her public defender informed her that she would be put in removal proceedings as well and risk deportation.

Waiver of Fraud

An applicant for immigrant visa who makes a willful misrepresentation or engages in fraud is not eligible to receive a visa. This is the general rule. This ground for inadmissibility, however, may be waived if the applicant can prove that there is a qualifying US citizen spouse or parent who will suffer extreme hardship. For those who are in deportation proceedings, the applicant may apply for cancellation of removal if, in addition to the qualifying relatives, she has incurred ten years of physical presence in the United States. Waivers may be available for applicants of both immigrant as well as non-immigrant visas.

Marjorie is now regretful of her past mistake. She regrets having committed fraud in order to hasten her entry into the US. Whether or not the immigration judge will grant her application for waiver will depend on many factors. She says that she would not mind being deported back to Manila if she were still single. But now that she has a three-year-old child and a spouse in the US, she cannot bear the thought of being separated from her family.  A mistake in judgment was made. She is now facing the harsh consequence of a possible deportation, which would tear apart her family. Marjorie is in distress. But amidst her difficulties she remains hopeful that a compassionate judge will grant her a second chance.

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

Categories
Immigration Round Table

Economic Downturn Compels Family to Return to the Philippines

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Hi Atty. Lou,

I am a green card holder and I obtained my resident status through the petition filed by my employer. Prior to receiving my card, my wife has been living in the United States with an expired visitor’s visa. She was not able to adjust her status with me.

We have two children. One child is in the Philippines and the other child is here with us in the US. Since the economic crisis has adversely affected me I have postponed filing a petition for green card for my wife and my child in the Philippines. Now that I am facing the heavy burden of raising a family on one income we have contemplated on deciding to fly her back to the Philippines together with our son. The consequences of this decision would be. 1] She will be barred for 10 years because of over staying her visitors visa. 2] our U.S. born son will have to stay the Philippines, as I would no longer be able to support them on my own.
 
If my wife is barred for 10 years, how long can I petition her again? Is it after the 10 year ban which will be roughly until year 2020, or I can initiate the petition while waiting for the 10 year ban to lapsed. How long is the normal waiting time for the petition to come out, since I might have already become a Naturalized Citizen within those 10 years. If my 11 year old daughter’s petition gets approved, how long does she need to start staying in the U.S. Since her mother will be out for 10 years, is there a way for her to stay in the Philippines without losing her LPR status.
 
Is the CIP-Asap bill worth waiting for in our case? How does it apply to us?

Concerned Father

Dear Concerned Father,

There are many Filipino immigrants right now who are contemplating on returning to the Philippines because of the economic crisis. Many have lost their jobs and their homes. In your case, you are taking the practical route although it will mean separation from your wife and children.

You are right in saying that your wife shall be barred from re-entering the US for ten years. This is a result of her staying in the US in unlawful presence for more than one year. This ten-year bar shall apply when she is applying for an immigrant visa and will re-enter the US. In the meantime, it will not prevent you from filing a petition for her as the spouse of a green card holder petitioner. Hence, you may start the petitioning process for her and your other child (born in the Philippines) even if they are residing abroad. Once these petitions are approved, they will have a priority date under the second preference category. The waiting time under the second preference (subcategory “a”) is approximately five to six years.

As soon as you become a naturalized US citizen, you may upgrade the approved petitions filed and visas will be available to your wife and child as your immediate relatives. During the application for immigrant visa, your wife will be facing the 10-year bar. It is at this point that you may file a Waiver of Inadmissibility in order that the grounds of inadmissibility that prevents her from re-entering the US may be waived. The adjudication of this application for waiver is discretionary on the part of the immigration officer. Your wife has to prove a very high standard of “exceptional hardship” to you as her US citizen spouse if the application is not approved. If this waiver is approved your wife may re-enter before the 10 year period. In the event that it is denied, she will not be able to re-enter until the lapse of ten years counted from the time she departed from the US.

As far as the Comprehensive Immigration Reform for America’s Security and Protection (CIR-ASAP) bill, it will have to go through a tough congressional process before it becomes law. It will be speculative to rely on this bill. There is a proposed legalization program for the undocumented individuals if this bill is passed into law.

I hope that this information is helpful. Good luck.

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, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied 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 may submit questions to law@tancinco.com)
 

Categories
SideBar

The Homestead Exemption

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When a creditor sues a homeowner, what can that homeowner do to protect himself from a possible adverse judgment?  

One such way for a homeowner to protect himself would be to make use of the homestead exemption provided by law. A “homestead” exemption protects a certain amount of equity in a debtor’s primary home from judgment creditors. This amount varies by State. In California, for example, the amount of exemption for an individual is $75,000. It goes up to $100,000 for a family unit. The maximum exemption is $175,000 for persons 65 & older or disabled, or, those above 55 years old with annual income below some threshold.  
    
In some states, like California, there are 2 kinds of exemptions. The first one is an “automatic” exemption that does not require you to do anything. The other one requires the filing of a document with the county register where the home is located.

The automatic exemption applies when a home is sold to pay a debt incurred by the homeowner. When a creditor sues a debtor and wins a judgment, the creditor can levy or attach any of the debtor’s properties, including the debtor’s home. The home can then be sold at a public auction in order to satisfy the judgment.
   
After the house is sold, the first person to be paid is the lender who holds a mortgage on the property. Assuming there is enough equity in the house left over after the mortgage lender is paid, the second person to be paid will be the homeowner up to the amount of the homestead exemption. Only if there is still some equity left after the first 2 persons are paid, will the judgment creditor get something; otherwise, the judgment creditor (who is in the third preference) will get nothing.

Thus, for example, assume a case with the following facts: a creditor wins a judgment of $30,000 against the homeowner who has a home mortgage obligation of $350,000. The home is then sold at public auction for $450,000. The first person to get paid will be the mortgage lender who will be paid the full $350,000 mortgage. If the homeowner is single, he will get $75,000 for his homestead exemption. The judgment creditor will then only get the remaining $25,000 to satisfy the judgment.

On the other hand, with the same facts above but this time the homeowner lives with a spouse in the auctioned home, then their homestead exemption will go up to $100,000.  This time, the mortgage lender will still get $350,000. However, the homeowner and the spouse will now get the remaining $100,000 as their homestead exemption. The judgment creditor will end up not getting anything out of the proceeds of the home sale.  Thus, the homestead exemption protected the homeowner’s full equity in the house from an adverse judgment.    

It is very important for our readers, however, to note the distinction between a mortgage lender as opposed to a subsequent judgment creditor. In most states, the homestead exemption does not protect you from a mortgage or other voluntary lien that you signed for the benefit of a creditor. You will still need to make your mortgage payment, as the homestead will not stop the mortgage lender from foreclosing if you default. The homestead exemption will only apply to other judgment creditors.  

The second kind of exemption is a “declared” homestead. This requires the homeowner to file a written document with the county register declaring the homeowner’s primary dwelling as a homestead.  The declared homestead can be useful in certain cases where a homeowner sells his home voluntarily. Once a home is sold, the cash proceeds of the sale are no longer protected by the “automatic” homestead exemption because the sale converted it from a “home” to a “cash” asset.  Hence, if there are creditors lurking for the sale to be completed, the creditors can then pounce on the proceeds of the sale at escrow and satisfy their judgment. However, if the homeowner has a “declared” homestead, it will protect the cash or other proceeds from the sale if you then use the cash to buy a home within the next 6 month and you record a homestead declaration in the next home.

Everybody receives a homestead exemption by law, which would protect some of a homeowner’s equity from adverse judgments.  A “declared” homestead gives homeowners an additional protection by also protecting the cash proceeds of a voluntary sale. Depending on a homeowner’s individual situation, recording a homestead may be beneficial to some homeowners but may not necessarily benefit all homeowners.

(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

USCIS Publishes Notice Regarding Changes to SEVIS Program

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USCIS has just announced that it will be modifying the Student and
Exchange Visitor Information System (SEVIS) to include changes to the
types of personal information collected and maintained for individuals.
With the launch of the new SEVIS application, SEVIS II, USCIS proposes
to collect additional information on students, exchange visitors and
their dependants that enter the United States under the F, M or J visa
categories, and the designated sponsors of these nonimmigrants.

Similar to the original SEVIS program, SEVIS II will track and monitor
F, M and J nonimmigrants throughout their stay in the U.S. educational
system or an exchange visitor program. With SEVIS II, there will be
updated categories of individuals, records, system purposes, and
routine uses. Additionally, SEVIS II will include new policies and
practices for storing, retrieving, accessing, retaining and disposing
of records in the SEVIS system, along with new procedures to access
records.

Finally, this notice includes changes that intend to simplify the formatting and text of the previously published notice.

Comments regarding this notice, which is available in the January 5,
2010 Federal Register, will be accepted on or before February 4, 2010.

Categories
Global Pinoy

Is Patience Still a Virtue?

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Gertrudes migrated to the US in the late 70s.  She later became a US citizen and petitioned for her mother who also became a resident of the US.  When her mother died in 1986 Gertrudes filed immigrant visa petitions for her 2 sisters.

After a wait of more than 22 years, her 2 sisters eventually got their visas and travelled to the US. Now both her sisters are staying with her in Daly City, California. It was a very long process and Gertrudes found herself adjusting to the ways and attitudes of her 2 sisters whom she hardly interacted with for many years.

When the Comprehensive Immigration Reform for America’s Security and Protection (CIR-ASAP) was introduced on December 15, 2009 before the US Congress, she called me to express her disagreement with the proposed immigration reform bill. Gertrudes claims that she played by the rules and waited  22 years to get visas for her sisters. She questions the propriety of legalizing immigrants who jump the process and are already in the US illegally.  For her, quick fixes such as the proposed legalization of undocumented immigrants are unfair to those who go through the process legally.

Waiting more than two decades to be reunited with her sister is “worth the wait” according to Gertrudes. However, with the current situation where the backlog in family and employment petitions are severely long, many are now in a quandary on whether or not patience in the immigration context may still be considered a virtue.

Family Disunity

In the early 1900’s when the first Filipino sacadas  (farmworkers) migrated to the United States to work, their family members were left behind the Philippines. An immigration system founded on family reunification was put in place at that time which was based on a numerical system.  Most of the first Filipino sacadas were able to petition their spouses and children from the Philippines.

As the immigration law evolved, a quota system was then established where priority is given only to the spouse, the parents and the minor children of US citizens. Adult children and siblings are not given priority and are categorized in a different group. The significant number of petitions filed then resulted in backlogs. It is now taking more than 22 years to petition for a sibling. To petition for adult children above 21, it is taking anywhere from 16 to 18 years. These protracted waiting periods are causing prolonged separation of family members thus defeating the principle of family reunification and instead resulting in family disunity.

Family members separated for extended periods of time suffer adverse impacts from this long separation. This becomes especially more difficult for elderly petitioners who have to wait long periods to be reunited with their children. A 65-year old new immigrant, for example, who files a petition for her adult children will have to wait until she is already in her mid-80s before she can be reunited with her children.

Many Filipino World War II veterans who arrived in the US when they were already in their 70s filed petitions for their children. Many of them have already passed away. The moment they passed away, their petitions were rendered void. Their children likewise ended losing their immigration benefits with never having been unified with their US citizen parents.

Critical Shortage of Nurses

Even with the recession, there is a surge in employment of local nurses in the US as visas for foreign RNs and other health care workers are no longer readily available as they were a few years ago.  The fact remains though that as baby boomers age, the need for health care grows and a shortage of nurses is still projected in the coming years. With the current immigration system, a severe backlog resulting in ‘retrogression’ halted the issuance of visas for many foreign health care workers to the US. At the present time, for example, visas are only being issued for RNs whose petitions were filed in 2002. Unless new visas are added by congress, RNs and other health care workers who have already been petitioned will have a wait of many years before visas are issued.

While many Filipino nursing graduates have already passed the board exams and the NCLEX exam, the important consideration for many is the question of when they may actually migrate and start working in the US or other countries. Many families invested on the nursing education of their children just to find the latter unemployed and unable to migrate.

Waiting Game

Intending immigrants are not the only ones affected by protracted delays in visa processing. Millions of undocumented immigrant, unable to wait for visa availability outside the US, are already in the US without legal resident status and hopefully waiting for a legalization program to be enacted by US Congress. The last amnesty law was passed in 1986.

Patience may be a good trait. Growing up, we were taught to practice the art of forbearance. But when family members are separated for a long time it becomes a natural reaction to be angry and take action to be reunited with our loved ones. For fresh nursing graduates, they are left to speculate on the amount of time they have to wait before they can work abroad.

Whatever alternative step is taken by those who are caught in the ‘waiting game’ it still needs to be within the parameters of legality. This is to avoid the disqualifications to migrating in the future. For those of us who are already in the US, we recognize that US immigration law is obviously dysfunctional and it is time to put all our efforts together to support a comprehensive immigration reform. Yes, patience is still a virtue. But life still goes on and we just need to do whatever we can while waiting and hope for the best to come.

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