Month: June 2010

Categories
Updates

E-Verify To Require Additional Information from New Employers

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This week, the Department of Homeland Security (DHS) published a
Privacy Impact Assessment update of the E-Verify program. In the
update, DHS provides an update about additional information that
E-Verify will now require from new employers that register with the
employment eligibility verification system. This new information will
be sent to Dun & Bradstreet, an organization that provides a range
of information about businesses; the information will be compared
against Dun & Bradstreet’s database to ensure that the new employer
is indeed an official enterprise.

New information that will be collected include the following:

1) The employer’s DBA name, if applicable (Doing Business As).

2) The employer’s DUNS number, if available (a Dun & Bradstreet
identification number). If the employer does not have a DUNS number,
the employer’s address, phone number and other data will be used to
clearly authenticate the employer.

3) The corporate administrator’s name.

4) The parent organization, if applicable.

5) The place where the employer heard about the E-Verify program (an optional field).

If Dun & Bradstreet is able to verify the authenticity of the
employer, the new employer will then be able to automatically register
for an E-Verify account. If Dun & Bradstreet is unable to verify
the employer’s authenticity, the employer will then need to be
contacted via phone or email.

Categories
Immigration Round Table

Difficulty in Proving Extreme Hardships During Economic Crisis

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Richard received an urgent call from his sister in the US. His son, John, who was studying in the US, was involved in an accident and was hospitalized. Unfortunately, Richard did not have a visitor visa at that time. He immediately approached a relative who helped him get a passport and obtain a US visa. Richard appeared before the consular officer using a fraudulent passport. The name he used was not in his real name. A visitor’s visa was issued and Richard used this visa to enter the US. His passport and his visa reflect the name of a certain “Albert”.

When Richard entered the US, he was issued an I-94 and was authorized to stay in the US for six months. Since his assumed name is “Albert”, he began to use this identity since his arrival in the US. John suffered from serious injuries as a result of the accident but survived all his afflictions with his father on his side. After a few years, John married a US citizen and had become a US citizen himself. He is now gainfully employed and filed a petition for his father. Instead of receiving an approval, this petition was denied by the immigration service. Richard is now facing deportation before an immigration judge.

Richard never felt resentment for using a fraudulent identity to enter until he was served with a Notice to Appear for deportation/removal.

Assumed Identity

The act of entering the US with an assumed identity is definitely classified as “fraud”. The fraudulent acts commence from the time Richard appeared before the consular officer to obtain a US visa and continued on until he carried over his assumed identity at his work place. His co-employees knew Richard as “Albert” since he never used his real name.

When his son petitioned for Richard, his counsel informed him that he has to reveal his real name. Among the many requirements to support the petition is the birth certificate of his son. To be able to show the filiations, the birth certificate of John must contain his father’s name. Presented with this predicament, Richard has no other option but to reveal his real identity and submit his legitimate passport and birth certificate.

In all his applications for the green card, Richard disclosed his use of an “assumed identity” upon entry in the US. His relatives informed him that to be truthful would assist him in getting his green card. He heard that a “waiver application” would condone his fraudulent entry into the US.

Waiver Applications

In most cases where an individual committed acts of fraud or misrepresented material facts in entering the US, the immigration law allows this individual to file for a waiver application as an incident to an immigrant petition. Upon filing of this waiver, the immigration examiner will determine whether the fraudulent acts committed may be disregarded and the individual may receive his green card.

The decision to grant or deny the waiver application is very discretionary on the part of the immigration officer. This is granted if the applicant for green card can establish “extreme hardship” to the US citizen or lawful permanent resident parent or spouse. The two most important factors to consider are the (1) presence of qualifying relatives and (2) extreme hardship. The present law, does not allow a parent of a US citizen to seek the waiver. The only qualifying relatives for the waiver are spouse or parents. Children are not considered qualifying relatives.

In the case of Richard, he is facing a dilemma. His son is not a qualifying relative for determining extreme hardship. He does not meet the first requirement and is therefore not eligible for the waiver.    

Extreme Hardship

The waiver application arises not just in removal proceedings but also in applications for US visas. The burden is on the applicant to establish his eligibility for the waiver. With hardships resulting from the US housing and economic crisis becoming a widespread occurrence to most families, determining what “extreme” hardship is for the waiver becomes a challenging task for the waiver applicant

Each waiver case is to be decided on its own merits. Only when extreme hardship is proven will the waiver be approved. And only when the waiver is approved, will an individual in deportation proceedings be granted relief and be declared a green card holder.

Although, the original intent of Richard who used the assumed name was to fulfill his moral obligation to his ailing son, the continuing use of the fraudulent identity did not work in his favor.
    
With the difficulty of obtaining waivers, desisting from engaging in fraud is key. Without the grant of a waiver, no fraudulent act may be justified and excused at the same time. 

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

Categories
Updates

USCIS Releases Report on Characteristics of H-1B Petitions Received for Fiscal Year 2009

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In a recent annual report submitted to Congress, USCIS presented the
numbers and characteristics of H-1B petitions received for Fiscal Year
2009. In the report, USCIS commented that the number of petitions
received during FY 2009 had decreased by 15 percent, as compared to the
previous year; the rate of approvals also decreased, down by about 20
percent.

Roughly 50 percent of approved petitions were for
individuals from India and about 40 percent were for computer-related
jobs. Additionally, the majority of approved H-1B workers were between
the ages of 25 and 34. Half of the approved individuals received an
annual salary less than $64,000; the other half received annual
salaries above that amount.

Categories
Immigration Round Table

Second Drug Offense is Not Necessarily Aggravated Felony

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Dear Atty. Lou,

My cousin is in removal proceedings because of his conviction of a drug offense. He has been residing in the United States since he was ten years old. He is now 25 years old and he was informed that he has no chance to be saved from deportation because his drug offense is an aggravated felony. We read in the papers that the Supreme Court rendered a decision that drug offense is not necessarily an aggravated felony. So I was hoping that this decision will assist my cousin in defending himself against deportation/removal. Please enlighten us on this matter.

Prima C

Dear Prima C,

You are referring to the June 14, 2010 decision of the Supreme Court in the case of Carachuri-Rosendo v. Holder, Case No.09-60 where it was decided that a person
who has been convicted of a second or subsequent simple possession of a controlled substance offense is not considered to be convicted of an aggravated felony at least where there was no finding of a prior conviction.

Generally, a non citizen who at any time after admission has been a narcotic/drug addict or a drug abuser is deportable. The exception is when the conviction is for a “single offense involving possession for one’s own use of 30 grams or less of marijuana.” In the case of Jose Carachuri, he was convicted of possessing less than two ounces of marijuana and received a jail term of 20 days. A year later, he pleaded no contest to possession of one tablet of prescription medication Xanax without prescription. According to the Department of Homeland Security, his second simple possession conviction constituted an aggravated felony. And with an aggravated felony, Carachuri is ineligible for cancellation of removal and is deportable.  The Fifth Circuit Court of Appeals upheld this decision. On appeal, the Supreme Court held that only recidivist simple possession offenses are punishable as a federal felony under that Controlled Substances Act. A noncitizen’s state conviction for a second or subsequent possession will not be considered an aggravated felony on the basis of recidivism unless the noncitizen’s status as a recidivist was either admitted by the noncitizen at plea or determined by a judge or jury in connection with a prosecution for the subsequent simple possession offense.

In writing the decision, Justice Stevens sent a strong a message that the aggravated felony provisions have become nonsensical. He stated in several paragraphs to that it makes no sense to categorize simple possession as an aggravated felony.

The impact of this decision relates to availability of relief to cases of individuals that may have two misdemeanor offenses where applicable. It does not change the general rule on inadmissibility or removability ground based on drug convictions. What must be emphasized here is that in Carachuri, the drug offense was for two ounces of marijuana and not any other controlled substance.

I hope this information about this new case 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

DHS and USCIS Issue Requests for Comments on Revisions of Immigration-Related Forms

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The Department of Homeland Security has issued a number of requests for
comments on whether it should revise certain forms. If the agency
decides to revise any of these forms, it will advise the public when it
publishes the 30-day notice in the Federal Register. Comments on any
revisions will then be accepted during that 30-day period.

Forms for which requests for comments have been issued include:

Form I-363, the Request to Petition for Custody for Public Law 97-359 Amerasian

Form I-600/I-600A, the Petition to Classify Orphan as an Immediate
Relative and the Application for Advance Processing of Orphan Petition

Form I-698, the Application to Adjust Status from Temporary to Permanent Resident

Additionally, USCIS has issued 30-day extensions on the comment request
period for National Interest Waivers and the revised Form I-102, the
Application for Replacement/Initial Nonimmigrant Arrival-Departure
Document.

Categories
Updates

27,000 H-2B Petitions Received for the Second Half of the Fiscal Year

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As of June 11, 2010, USCIS has received 27,778 H-2B petitions toward
the 47,000 petitions the federal agency aims to accept for the second
half of this fiscal year. This current count includes about 26,000
approved petitions and about 1,500 pending petitions.

Currently, there is an annual H-2B cap of 66,000 per fiscal year, with
33,000 allocated for the first half of the fiscal year (October 1 to
March 31) and 33,000 allocated for the second half of the fiscal year
(April 1 to September 20). USCIS will accept 47,000 petitions for this
half of the fiscal year, a target number they believe will give them
enough petitions to reach the cap.

Categories
Updates

USCIS Announces the Availability of a New I-90 Form

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On June 14, 2010, USCIS announced that the availability of a new
version of Form I-90, the Application to Replace Permanent Resident
Card. This new version, which is dated 8/10/09, contains a number of
new, more user-friendly features. USCIS comments that it will accept
previous versions of the I-90 form for 45 days (until July 28, 2010).
After that date, all previous versions of the I-90 form will be
returned to the applicants with a note instructing them to use the
correct, current version of the form.

Applicants may file the
form electronically through e-filing or by mailing it to the USCIS
Phoenix Lockbox facility at one of the following two addresses:

U.S. Postal Service:

USCIS
P.O. Box 21262
Phoenix, AZ 85036

Express Mail/Courier Services

USCIS
Attention: I-90
1820 E. Skyharbor Circle S Floor 1
Suite 100
Phoenix, AZ 85034

Please note that if you are filing your form at the USCIS Lockbox
facility, you may request that USCIS provide you with an email or text
message notifying you that your application has been accepted. Simply
complete and file-in Form G-1145, the E-Notification of
Application/Petition Acceptance form, and attach it to the first page
of your I-90 application.

Categories
SideBar

How Do I Collect A Debt?

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Ever have someone borrow money from you and never paid it back? Or, have you ever co-signed for someone’s debt who defaulted on it and you are now responsible for that debt? Or, have you ever given someone your money to “invest” in a business opportunity and no accounting of profits/losses has been provided? That someone is now avoiding you and refuses to honor his obligation to you. What are your options to collect?  

The first thing most people normally do would be to consult with an attorney to file a collection lawsuit. However, for whatever reason, some may not be able to afford an attorney, or, the minimal amount of the debt does not justify the involvement of an attorney. In these cases, alternative options are open.      

The first option would be a collection lawsuit in small claims court. In small claims court, parties cannot be represented by attorneys and parties appear on their own before the judge. The process of going to small claims court is relatively simple. A one or two page complaint form is filled up.  Filing fees are paid. The Complaint is then mailed or served on the debtor.  The court then sets a hearing date at which time the creditor can present evidence about the debt being collected. Decisions are normally handed out immediately after the hearing.

The limitation to a small claims court action, however, is that the court can only issue a judgment below a certain amount. In California the jurisdiction of small claims court is only up to a maximum of $5,000.  Thus, if a creditor is owed $8,000 but files a claim in small claims court, only a judgment of $5,000 can be issued by the court.

The other options would be to go to mediation or arbitration with your debtor. If the debt is disputed or the terms thereof are not clear, then this option might be a viable choice. In mediation, a mediator tries to bring the parties together to a mutually acceptable solution. Each party normally has to compromise to arrive at a settlement. An arbitrator, on the other hand, is someone selected by the parties who will make a decision on the merits of the parties’ positions. The decision of the arbitrator may be binding or non-binding depending on the agreement of the parties.

Another option would be for you to contact a collection agency and have them do the collection for you.  However, collection agencies may or may not accept your case depending on their chances of getting it done; and, if they do accept it they normally charge a hefty fee of 50% of whatever is collected.

If you are the creditor collecting on a debt, getting a favorable judgment in small claims court or arbitration; or, settling in mediation may or may not result in you getting your money back. Getting a judgment or winning a case is not the end of it because you will still need to collect on it by executing the judgment: foreclosing on collateral, garnishing a debtor’s wages, or attaching a debtor’s properties. Thus, winning a case may not necessarily result in you getting your debt paid depending on whether or not debtor has available assets that you can run after.       
    
Good luck.

(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
Global Pinoy

Forced to Sue the Country They Defended

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The Friday after Memorial Day three brave Filipino World War II veterans filed a lawsuit (De Fernandez vs. VA, et al) against the U.S. Department of Veterans Affairs before the Federal District Court in San Francisco CA.  The impetus for filing by these plaintiffs was the denial of their veterans’ equity compensation of $15,000 despite their proven qualifying services during World War II.

VA’s rationale for the denial of their claims is that these veterans’ names are not found on the “Missouri List” which is considered an authoritative source of reference for veterans. These war heroes and those similarly situated condemn the injustice in the lawsuit that was filed. VA very well knows that a 1973 fire at the National Personnel Record Center destroyed the “Missouri List” which contains 16 to 18 million official military personnel files. Most of those destroyed records are of personnel who were discharged from November 1, 1912 to January 1, 1960.

Aside from the fire, there are also those veterans who are not on list as they were dissuaded from putting their names on it. These veterans feared that the Japanese military might gain access to that information and put them and their families at risk of being killed during the war. This is a historical fact verified by testimonies of American veterans who fought side by side with the Filipino veterans.

The Plaintiffs

Three Fil-Am veterans and a non-profit organization are the named plaintiffs in this lawsuit. Mr. Romeo de Fernandez is a 91-year old veteran who was granted US citizenship based on his services as a US soldier during WWII.

Plaintiff de Fernandez was a Bataan Death March survivor who was captured and incarcerated at Camp O’ Donell Concentration Camp in 1942. He has records and discharge documents from the US Army. He received medals for his valiant service one of which is the American Defense Service Medial with a bronze star.

Despite de Fernandez’s decorated military service, the VA denied his claim for Veterans Equity Compensation Fund because his name does not appear on the “Missouri list”.

The same case applies to Plaintiff Ciriaco Dela Cruz. He was naturalized as a US citizen based on his service to the US military. He was with the  Batute Infantry Regiment, Bulacan Military Area, a Recognized Guerilla Unit. His military service was confirmed on February 14, 1992 by the Philippine government records, which certified that he is a “Sgt” on the approved Revised Reconstructed Guerilla Roster of the “H” Company Supplementary Roster. But just the same, his name is not on the “Missouri List” and VA denied his claim for the veterans equity compensation fund.

The San Francisco Veterans Equity Center joined the veterans as Plaintiff in this lawsuit. This non-profit organization, which helps veterans with their claims, received hundreds of claim denials based on the fact that the veterans’ names are not on the Missouri list.  Records at the San Francisco Veterans Equity Center also shows that even veterans who are on the list are sometimes denied based on questioned loyalty.

One of the Plaintiffs, Valeriano C. Marcelino, 88 years old, is a naturalized US citizen whose qualifying service during the war is confirmed by the National Personnel Record Center. His name appears on the Missouri list.  Yet, he received a notice of intent to deny his equity compensation based on the fact that the VA uncovered a copy of check from the ‘Yokohama Specie Bank Limited’ in the amount of P635 paid to “V. Marcelino”.  Based on this check, the VA now assumes that “V. Marcelino” is, in fact, the same person as the plaintiff “Valeriano Marceino” and now is denying his application based on his questionable loyalty.  

Plaintiff Marcelino is very much distressed by VA’s allegation; and, in the complaint that was filed, he states that he,  “ did not received (sic) this check because I did not served (sic) any pro-Japanese, pro-German or any anti-American unit. Additionally, Marcelino has supplied a copy of the signature on the back of the subject check and as well as his own, true signature, which upon comparison are significantly different from one another. Furthermore, Marceline explained that being a farmer all of his life, he had never seen a check made to his name until he came to the United States and received his first SSI check.”

Continuing Injustice

A veterans’ advocates from Washington DC called me on the day the lawsuit was filed. She asked me when will I ever stop working on this veterans issue. I was appalled by this question and responded that the work continues “as long as there is this continuing injustice” that needs to be rectified.

When President Obama signed the American Recovery and Reinvestment Act on February 17, 2009, which contains this $198 million budget for the Filipino Veterans Equity Compensation fund, most veterans and their families were elated. This was a compromise legislation that would somehow ameliorate more than six decades of injustice.

An allocation of $15,000 for US citizen veterans and $9,000 for non-US citizen veterans appear to be a generous grant from the US government especially during an economic recession. But what seemingly was a positive gesture turned out to be a nightmare for thousands of veterans, like the plaintiffs in this case. Thousands have been denied their just benefits because their names do not appear on the Missouri list. The Veteran’s Affairs should desist from denying rightful claims and adopt more reasonable standards for approving their applications.

For many of these veterans, there is not enough time left. For some, time has already run out.  Just the other day, a veteran’s relative informed me that his father’s $15,000 was finally received in the mail. The daughter did not know what to do with the check because the veteran had died a few days before the check was received. Many more veterans will undoubtedly suffer the same fate. How much more time does VA have to waste before rightfully adjudicating these claims?

(The Tancinco Law Offices and the Cotchett, Pitre and McCarthy firm jointly filed this class action lawsuit.  Attorneys Pete McCloskey and Stuart Gross are the lead counsels. Copy of the complaint filed may be obtained from the www.cpmlegal.com. Tancinco may be reached at law@tancinco.com or at 887 7177)