Month: August 2010

Categories
SideBar

Should I Cash Out My 401(k) To Pay My Debts?

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A reader recently wrote to ask if it is a good idea to take cash out from his retirement account in order to pay off his credit card debts. Having been recently laid-off and just receiving unemployment income, he has exhausted his savings. He is now considering taking cash out from his 401(k) account in order to reduce his credit card obligations.

Many homeowners previously had the home equity line of credit as a major source of liquid asset available for easy cash at a moment’s notice. Unfortunately, with the housing price collapse, many have lost the home equity line of credit as a source of easy cash. The only liquid asset left for many individuals are their savings and checking accounts. However, with high unemployment rates, it is very common for many households to also have exhausted their savings/checking accounts and now only rely on their employment/unemployment income as their regular source of cash liquidity.  

What happens when our employment/unemployment income is still not enough for our daily needs and to pay off obligations? Those facing unmanageable debts often worry that creditors would run after their assets, including their retirement accounts. Some would even withdraw and spend their retirement accounts in order to prevent creditors from getting their hands on these assets.

This may be a mistake that compounds an individual’s financial difficulties. It is important to know that our IRA and 401(k) retirement accounts are protected from our creditors. Even if an individual files for bankruptcy, one’s retirement accounts are not part of the bankruptcy estate and still remain protected from creditors. Thus, it is generally not a good idea to cash out our retirement accounts in order to pay off credit card debts. Hefty taxes and penalties are involved when we withdraw from our retirement accounts. In addition, when we use our retirement accounts to pay off our credit card debts, we get money from a protected account and pay off an obligation that could easily be discharged in bankruptcy.

Individuals in financial difficulties should talk to a professional about other options before draining their retirement accounts in order to pay off credit card obligations. In this case, it is not a good idea to borrow from our future in order to correct a mistake done in the past.

(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

Abused Fiancee Ends Up Defending Self from Deportation

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Dear Atty. Lou,

I arrived in the US on a fiancé visa on August 1, 2006. I was petitioned by my husband who I met through the internet in 2004.  When he was courting me, he said he was a devout Christian, a good loving and sweet person looking for a serious relationship. He said he loved me so much and promised me that he will take care of me.

When I arrived in the US, we only stayed together in his room for only one week. After one week he made me stay in a separate room with no air conditioning. He only makes me go inside his room whenever he wants me for sex. I found out that he doesn’t want me in his room because he watches porno in his computer. Just a few weeks after my arrival, my husband became very abusive to me-physically, emotionally and sexually. He even forced me to have sex with his brother against my will. Whenever I refused to have sex with him, he would drag me on the floor from my room to his room.

He filed a petition for me with the Immigration Service but we both did not appear for our interview. The petition was denied and I was brought before the Immigration Court. I was able to escape from our home and live in a shelter. I am being assisted now by a  non profit organization that caters to victims of domestic violence. My lawyer filed for self petition under the Violence Against Women Act (VAWA). This petition was approved and I have hearing in November 2010.

My husband still harasses me and a few days ago, I went to a family court to file the divorce. He was also there and tried to talk to me to return to the home. I am so frightened. He told me that he divorced me in August 2007 even before I escaped from the house. In my self petition, I represented that I was still married, I did not know that I was already divorced until recently. I don’t want USCIS to think I was lying. What are my options now? Do I still have a chance to stay in the US? I do not have a work permit and I have been waiting for a long time for USCIS response. Should I get married again? Will this help me with my case?

Please enlighten me. Never in my wildest dreams did I think my life would take a turn for the worse here in the US. I was 35 years old before I was married and then it turned out like this. I am so stressed and depressed. I hope that no one else will suffer the same abuses I experienced.

VAWA Petitioner

Dear VAWA Petitioner,

I sympathize with your situation and I hope that Filipinos migrating as fiancées will take time to know more about their petitioner before following them to the US. Unfortunately, for some, they are not able to predict the change in character until they arrive in the US just like what happened in your case.

Based on the information you have provided, it appears that you already have a I-360 self petition approved under the Violence Against Women Act. This petition is approved on the ground that you successfully proven that you were a victim of domestic violence by a US citizen spouse. In the past, one of the requirements is that the petitioner/victim must not be divorced from the US citizen spouse. However, this requirement was already eliminated and that it does not matter whether you are still married or not to your abuser.

On you next individual hearing in December 2010, you are expected to show proof of your admissibility to the judge based on your approved petition. I assume that your legal representative had filed for your adjustment of status on your case. During your hearing, there will be an opportunity to explain the discrepancy of your responses on the I-360 form and the responses on your adjustment of status regarding your marriage and subsequent divorce. I do not believe that you will be considered as intentionally lying on your petition regarding your divorce because you just discovered recently that you were already divorced since 2007.

I do not see any good reason for your to enter into a second marriage to a US citizen just to stay in the US. There is a strong probability,  unless you have “inadmissibility” issues such as fraud or criminal cases, that your application for relief before the judge will be granted. 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, 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

USCIS Introduces New Photo Matching Tool in E-Verify

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This week, USCIS announced that it will expand the photo matching
portion of the E-Verify program to include U.S. passports and driver’s
license data. This change will be effective this September and will
give companies and organizations that use E-Verify the capability of
comparing photos from an individual’s U.S. passport with that stored in
the government’s online database during the I-9 verification process.

Currently, the capability to photo match only appears for foreign
nationals who show a recent version of their permanent resident card
(Form I-551) or Employment Authorization Document during the I-9 review
process. This new change will not be mandatory for E-Verify
participating employers.

Categories
Updates

New Electronic System for Travel Authorization Fee for Visa Waiver Program Travelers Takes Effect September 8

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The Department of State (DOS) has just posted a cable providing
clarification on the Travel Promotion Act of 2009 (TPA), a new rule
that would require travelers from Visa Waiver Program countries to pay
operational and travel promotion fees when applying for the Electronic
System for Travel Authorization (ESTA). The interim final rule, which
goes into effect September 8, 2010, will include these fees in the ESTA
program, which total $14. The fees, matched by private sector
contributions, will be used to fund the Corporation for Travel
Promotion.

Payment of the new $14 fee is required through credit or debit card
payments. The ESTA form that is currently in use provides detailed
information to aid in the payment process.

The goal of the TPA is to attract international visitors to the United
States. DOS will work with the Corporation for Travel Promotion to
provide comprehensive and up-to-date information to international
visitors about travel documents and various requirements for entry into
the United States.

Categories
SideBar

Stricter Rules On Debt-Settlement Companies

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Many of us have seen ads by debt-settlement firms promising to reduce our debts for pennies on the dollar. We see this in TV ads as well as in flyers we receive in our mailboxes.  For a person in debt, these offers appear to be very enticing.

The reality, however, is that there have been thousands of consumer complaints against these companies. In fact, debt-settlement companies have been charged in more than 250 federal and state false-advertising cases in the last several years. This is a very high percentage considering that there is about an estimated 1,000 debt settlement companies across the country.  Thus, the FTC (Federal Trade Commission) has imposed new rules on companies that purport to help borrowers get rid of their debts. These new rules are aimed at addressing the numerous complaints against these companies that charge huge fees but fail to reduce the customers’ debts.

In announcing these new rules, John Leibowitz, Chairman of the FTC, said in a statement announcing the new regulations: “Too many of these companies pick the last dollar out of consumers” pockets and, far from leaving them better off, push them deeper into debt, even bankruptcy”.
 
There are three major components on the new rules.

The biggest change imposed by the new rules is that debt-settlement companies will be barred from collecting upfront fees. In the past, these companies collected fees and customers ended up without a single negotiated debt agreement. This is now prohibited. Companies may only collect fees after the successful renegotiation, reduction or settlement of debts.

The second change in the new rule is the requirement that if consumers pay into an account as part of a settlement agreement, the account must be in the name of and controlled by the consumer, rather than controlled by the debt-settlement company. In the past, this was a source of abuse. Many consumers would make monthly payments to the debt-settlement company thinking that their debt was being paid. The reality, however, was that the debt-settlement companies were just accumulating the payments in an account without paying a single penny to the creditor. In the end, a lot of consumers became victims when the money in these accounts were absconded with and the consumer left with nothing. The monthly payments they made were gone and they are still left with even more debts, now with additional interest and penalties tacked on.

The third change is that settlement companies will be required to spell out the negative potential consequences of a settlement. It requires companies to disclose how much the process could cost and how long it may take consumers to see results. In addition, advertising claims have also been restricted.

The disclosure rules take effect on September 27 while the new regulations preventing advance payment take effect on October 27.  Until these rules take effect, consumers should beware of debt settlement offers that do not give the protection imposed by these new rules.

(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

Utah Legislator Introduces Restrictive Immigration Enforcement Legislation

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A conservative Utah state legislator has proposed a new restrictive
immigration regulation similar to Arizona’s controversial immigration
enforcement bill. The bill, introduced by State Rep. Stephen Sandstrom
(R), had its first hearing this week and contains a number of
provisions similar to those in the Arizona legislation that were
blocked by a federal judge earlier this month.

Included in Sandstrom’s bill is the requirement that police, when
stopping individuals for other violations, question people’s
immigration status if they have reasonable suspicion that the person is
in the U.S. illegally.

A group of Utah legislators had traveled to Arizona this summer to
obtain guidance on how to draft such a law. Similar groups from
Tennessee and Colorado have also recently traveled to Arizona for the
same purpose.

Categories
Updates

USCIS Posts Reminder to Eligible El Salvadoran Nationals to Re-Register for Temporary Protected Status

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USCIS has posted a reminder to nationals of El Salvador, as well as
people with no nationality who last habitually lived in El Salvador,
who have Temporary Protected Status (TPS), to file their
re-registration applications for this status before the re-registration
period ends on September 7, 2010. The 18-month extension of this status
for El Salvadorans will be effective until March 9, 2010.

USCIS notes that people who have previously received TPS must now
re-register for this status during this re-registration period. If you
do not re-register during this period (without a good reason), your TPS
benefits will be withdrawn. This includes employment authorization and
protection from removal from the U.S.

To re-register, a TPS beneficiary should file both the Application for
Temporary Protected Status on Form I-821 and the Application for
Employment Authorization on Form I-765, with the required fees (or fee
waiver request). If you are not requesting employment authorization or
an extension of employment authorization, Form I-765 is still required,
but the accompanying fee is not required.

Categories
Global Pinoy

Spare the Immigrant Retirees from Red Tape

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In a letter sent to our office by an immigrant residing in California, she expressed her disgust over her inability to obtain her retirement benefits from the Social Security System. Her letter reads:

I have been a registered-contributing member of the SSS since July 1966.  In January 1990, I retired early from my job at the US facility in Subic Bay to migrate to the US. Now that I’m old, I asked my son to apply for my retirement benefits but the SSS branch in Olongapo City is giving us a hard time. They even said that my name is no longer in their system.

I’m only claiming what is duly mine. Any amount will be very helpful for my family and relatives in the Philippines. And it is my plan to spend my remaining years in our homeland. What should I do?

The same grievance was also expressed by the daughter of a long time US immigrant in the US. She said that her mother who resides in Vallejo California was claiming her retirement benefit from GSIS but was having a difficult time obtaining the same. Her 80-year-old mother went back to the Philippines to personally attend to her application for retirement. She was asked to go to Manila just to find out that her benefits were being paid to a “third party” unrelated to her. Mrs. “T” returned to the US frustrated. Further inquiries at the Philippine Consulate office revealed that Mrs. “T” was reported as a deceased claimant and so an unscrupulous individual was taking her survivor’s benefits.

More cases are being reported on how frustrating it is to claim for retirement benefits.

Immigrating Abroad

There are varying reasons why there is an increase in the number of Filipinos working abroad.  Obviously, the number one reason is for “economic” opportunities. After a migrant is settled abroad, petitioning the family to follow them becomes the next priority. Immigrants petition not only for their spouse and children but also for their siblings and parents.  Hence, there are many who migrate in the sunset of their lives after they have already rendered so many years of public or private service.

When the migrant retiree becomes eligible for retirement, claims for their benefits from SSS or GSIS should not be a struggle. Their desire is to be able to claim only what is “due” to them. This is in the same context as the Filipino World War II veterans who fought so hard during the war and are claiming their veteran’s benefits, which they have been deprived of for many years. But from the perspective of the veterans they are claiming from the US; while the SSS & GSIS retirees are given a hard time by their own homeland.

The system of processing retirement claims may have been streamlined in the past. There is a verification process for claimants through the Internet or through submission of certificates of appearance. But how do we address the difficulty encountered by immigrants who live abroad in obtaining their pensions? How does one explain that an immigrant is declared “deceased” when in fact she is alive? When will all these difficulties and fraudulent transactions be put to a stop and the government institution be more sensitive to the rights of their workers?

Emotionally Charged

Addressing the concerns of the immigrant senior citizens in the US is a big challenge especially when they express their emotional outrage on a matter that is ridiculous. When  Mrs.”T”, the retired teacher, heard the news that she was declared as already “deceased”, she almost suffered a heart attack.  She is still fuming at the “fraudulent” claim on benefits due her.

The letter sender claiming for her retirement benefits from Social Security System says that the amount she is claiming for will not even be for herself but for her relatives in the Philippines who are more in need. She also indicated that she is planning to return to the Philippines to finally retire. Hence, it is not usually whether the amount of benefit is significant or not. Immigrants in their senior years are also planning to return someday and want to remain vested in the homeland. Their receipt of a meager pension signifies more than the amount that is to be received.

Immigrants Deserve Better

Listening to P-Noy’s State of the Nation Address gave us all immigrants a sense of hope in the homeland. When he said among others that we can dream “again”, we took it to heart that this new leader is instilling new hope to all Filipinos including all of us who remain connected to the homeland despite our many years of absence.

The GSIS or the SSS were not among the institutions that were put on the spot during the P-Noy’s SONA.  However, it is public knowledge that there is rampant corruption and red tape in these institutions as well.  It becomes more challenging when it involves the benefit of seniors and immigrants abroad as these immigrants are part of the overseas Filipinos sending billions of dollars in remittances every month. They deserve better.

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

Categories
Immigration Round Table

Applying for the Right Visa for a Kidney Donor

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Dear Atty. Lou,

My sister Anna is a green card holder residing in California. She is suffering from a kidney end stage renal disease and is seeking a donor for a kidney transplant. We have a brother, Mark, in the Philippines who has been evaluated to serve as my sisters donor. He was found to be a perfect match and agreed to donate his kidney to our sister.
    
Unfortunately, my brother applied for a visa at the US Embassy in Manila but was denied issuance of one.  He is now unable to come to the US to donate his kidney.

In the meantime, my sister Anna receives daily peritoneal dialysis treatment and actively attends monthly meetings with her outpatient clinic peritoneal dialysis charge nurse, the clinic dietitian, her clinic social worker and her nephrologist. She is found to be an excellent transplant candidate.
 
I would like to know how my brother may obtain the right visa to enter the United States to donate his kidney and afford him sufficient length of time to recover. There is a pronounced shortage of organs available for donation in America and the average wait is now over 5 years for a deceased kidney donor. Furthermore, the percentage of finding a perfect match, even among family members, is very low. Our brother is among a very short pool of rare donors. Please help.

Sister in Distress

Dear Sister,

You raised a very serious concern about your sister’s medical condition. Kidney transplantation will definitely help her recover especially if biological relationship exists between the donor and the recipient. The need for and identification of an identified kidney donor is very critical.  Unfortunately, when the donor is abroad and needs to travel to the United States, obtaining the appropriate visa becomes a challenge especially for first time applicants.

The right visa for your brother is a B2 or a visitor’s visa. The US Department of State defines numerous legitimate activities of visitor visa holder to include among others, visit with friends or relatives, rest and medical treatment. In the case of your brother, his activity falls under “medical treatment” despite the fact that he is the kidney donor. He will have to undergo surgical procedure and needed time to recover thereafter.

You have not mentioned in your letter the reason for the denial of the visitor visa for medical treatment. I will assume that the consular officer has not found sufficient evidence that your brother is returning to the Philippines after his temporary stay in the US. Proving the need for his presence in the US for the medical procedure, being the best kidney donor for your sister, is just one of the many factors the consular officer is looking at to grant the visa. He should also be able to prove the “financial” support he will get when he is in the US and the health insurance coverage for him if any.

There is a December 1, 2001 Memorandum sent by the Department of State to consular posts regarding abuses of the nonimmigrant visas for emergency medical treatment and active labor act at the expense to US hospitals. Consular officers were advised to be judicious in granting visas to those seeking medical treatment and to require proof of sufficient funds to cover all medical treatment and follow up treatment. The letter from the hospital accepting the patient for treatment is not sufficient.

There is no appeal or review of a denial of a B2 visa. However, your brother may re-apply again for a B2 visa but this time he has to come prepared with all sufficient documentation and proof of sufficient funds. This kidney transplantation, just like any medical emergency raises humanitarian concerns and your brother should be issued this B2 visa. If everything else fails, you may try seeking for a humanitarian parole visa directly from the Department of Homeland Security in Washington DC.

I hope this 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, 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)