Month: March 2011

For several years now, the retrogression of visa availability for employment-based petition for nurses has resulted in a backlog in the issuance of visas. The number of years that a nurse will have to wait to become an immigrant is now an average of five to six years. With the decline in the migration of nurses to the US, a new study shows that lack of nurses in hospitals have caused an increase in mortality of patients.

Blesilda finished her nursing degree in 2009. She planned to migrate and work in the US as a registered nurse. After she passed her board exam and the NCLEX, she paid a substantial sum to a recruiter to find her a US employer. Thereafter, a US employer filed a petition for her immigrant visa in 2010. This petition was eventually approved with a priority date of April 1, 2010.

The approval of the Blesilda’s petition did not guarantee her the immediate issuance of an immigrant visa. She has to undergo a wait of many more years before she is processed for a visa. The visa petition was filed under the 3rd preference employment-based category where the priority dates currently being processed are petitions that filed in 2005. This means that it may take approximately five (5) more years before she is processed for the visa. In the meantime, Blesilda is finding a job in local hospitals in her own town.

Major Changes in Hiring

Before 2007, the registered nurses recruitment in the US was at its height. The US Congress recognized the severe shortages and the adverse effect it had on health care. Thus, more visas were made available for foreign nurses. With immediate visa availability, nurses at that time had the luxury of choosing which US employer to work for. There was even a buying of contracts from one employer to another. That situation has changed. Currently, it is not unheard of for Nurses to pay for employers to file petitions for them.

Beginning 2008, hiring of nurses in the US started to decline. This was also the beginning of the US economic recession where employees started getting laid off and companies began folding up their operations. Though there are still a few nurses being hired by US employers, their numbers are not significant. Many still hold approved petitions by their employers hoping that when their priority dates becomes current, their petitioning employers will still be in operation and will still be in need of their services. There are many instances where petitioning employers have revoked approved petitions for varied reasons ranging from lack of financial ability to pay to just change in corporate structures.

Future of the ‘Nursing’ Career

The migration history of Filipino nurses goes way back.  There is no exact statistics on the number of Filipino nurses in the US but almost every hospital has a Filipino nurse on staff. It would not be hard to envision a scenario where if all Filipino nurses walk out of US hospitals there would be a disaster in the provision of health care.

A recent study published March 17, 2011 by the reputable New England Journal of Medicine found that there is an increase of 2% in patient’s risk of death for work shifts in hospitals that are understaffed. Using scientific methods, the study found that there is a clear connection between in-patient mortality rates and nursing shortage.

Despite the immigration changes that cause delay in the issuance of immigrant visas to foreign nurses, the fact remains that there is still a “shortage of nurses” in the US. Although lay offs are being experienced by US based nurses, this phenomenon is largely brought about by ‘budget’ cuts in state and federal government.

One of the many agenda of the Obama administration is the overhaul of the health care system. While the Republicans are opposing attempts by the Democrats to improve on the health care system, the importance of improving health care remains a priority. However, it may still be some time before these shortages of health care workers will be addressed.
Passion for Care

In the hope of going abroad, many families sacrifice so much for the nursing education of their children. It is the potential of working abroad that motivates many young Filipinos to enter nursing schools. Disappointments are high as these young nurse graduates are faced with limited jobs locally and abroad. The hope, however, is that the current trend is just temporary and it will be a matter of time before the nursing shortage is addressed once again because of the increasing demand for their services in the health care industry. Congratulation to all the new nurses who just graduated and those who just passed the board. If caring is indeed your passion, then you will never allow this temporary situation to affect you. Eventually, you will find yourself practicing your profession wherever you are needed.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

After being undocumented for three years, Antonina was introduced to George who is a US citizen.  After a short courtship they got married in a civil ceremony. The first year of their marriage was blissful.  However, after Antonina gave birth to their daughter, George started becoming abusive.  He would yell at her and throw things around the house whenever he gets upset. Antonina tried to bear with the abuses of George despite suffering severe emotional and physical pain.

Antonina did not work and was a full time housewife and mother. Whenever, George argued with her, she is reminded that she owes her life in the US to him. According to Antonina, his spouse wanted him to feel beholden to him for petitioning her to become a lawful permanent resident. The truth, however, was unknown to Antonina.  Her greencard expired after two years and George never renewed Antonina’s greencard resulting in her being out of status.

Antonina never called the police to protect herself whenever her husband hurt her. George threatened her most of the time and instilled fear in her that if she called the police, she will be deported and will not see her daughter again.

In a sudden turn of events after a very serious argument with George, Antonina picked a knife and tried to kill George while the latter was asleep. George suffered injuries and the police arrested Antonina. She is now in trial for attempted murder and is prevented from seeing her daughter. If Antonina is found guilty, she will serve sentence before being deported back to the Philippines.

Choice to Abandon

In abusive relationships, the aggrieved party has the choice to abandon the abusive partner. It would have been easier to make a decision to leave an abusive spouse if there is no “immigration issue” that needs to be considered. Fear of deportation and of being arrested by the immigration authorities is a real threat to most victims of domestic violence who are undocumented. It is for this very reason that legislation was enacted many years ago to protect victims of domestic violence.

The Violence Against Women’s Act (VAWA) gives protection to abused spouses from being deported. It allows the abused spouse to self-petition without the help of the abusive US citizen spouse. To avail of the benefits of this law, the first step is for the undocumented abused spouse to garner enough courage to make a firm decision to end the abuse by getting out of their bad situation.

Almost all of the abused spouses face real threats from their US citizen partners. There are many reasons why abused spouses are not able to freely relieve themselves from their predicament.

Although Filipino Americans are the second largest Asian American group in the US, there are still many areas in the US where the Filipino American population is very sparse. US citizen petitioners may be residing in areas where there is hardly any Filipino in the area. Thus, when a Filipino spouse is a victim of abuse, community resources are not readily available to get help. In places where there are organizations doing outreach to abuse victims, oftentimes the linguistic barrier becomes a problem. This prevents many Filipino abuse victims from freely expressing themselves and seeking assistance.

Another reason why there is strong hesitation on the part of domestic violence victims to report the crime to authorities is the unfortunate situation of “revenge arrests”.  This happens when 911 is dialed during altercations between the spouses. When the police arrives, the US citizen who is usually the more articulate party may reverse the situation and say that the perpetrator is the undocumented abused spouse. This happened to an El Salvadoran national named Maria Bolanos. When the police arrived in their home as a result of a 911 call, instead of arresting the abusive US citizen spouse, Maria was the one arrested. When she was finally cleared of the charges, the immigration authorities to her into custody and placed her in deportation proceedings.

The Secure Communities Program of the Department of Homeland Security shares its database with local police. Homeland Security is alerted whenever a person is arrested even if there are no charges filed. If the arrested person is an undocumented alien, immigration authorities will take custody of the individual.

Family First

Victims of domestic violence are anxious about reporting to authorities for fear that they may be separated from their children. This is what actually happened in the case of Antonina above. She tried to bear her sufferings in the hands of her abusive husband until she lost control and became violent herself. According to her, she was concerned about the welfare of her daughter and did not want her family to be broken up. In hindsight, she should just have abandoned her spouse before she got herself into her deplorable situation. Now she is separated not just from her spouse, she is also separated from her daughter while facing criminal charges.

The law against domestic violence and the policies behind them are clear. It protects the rights of abused spouses. For those who are suffering in the hands of abusive spouses or those who knows of friends who are in this situation, it is important to point them to the right direction. We hope that there will be enough courage on the part of victims to relieve themselves from their unfortunate situation. For their relatives who are left behind in the Philippines, constant communication with your daughter, sister or mother abroad is key to show family support when it is most needed.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

Ronaldo arrived in the US with a B1/B2 visitors visa. He used to be an employee of a prominent and wealthy businessman. After many years of earning profits from illicit activities, Ronaldo left his employer and went to the US. He has more than a million dollars in cash available for investment.

According to Ronaldo, his family’s safety is at risk and wants to settle in the United States for good. After consulting with legal counsel, Ronaldo was informed that even if he has possession of a significant amount of cash, he may still not qualify for the investors visa.

Thereafter, Ronaldo decided to just purchase real estate properties and returned to the Philippines. He continues to hold a visitors visa and goes to the US occasionally to look into his investment properties.

Two Types of Investors Visas

Investors visas may either be granted temporarily or on a permanent basis. The temporary investors visa is known as the E2 treaty investor nonimmigrant visa. The capitalization for this E2 visa is not defined in terms of an exact minimum amount. The statute merely requires a “substantial” investment to qualify.

Substantiality depends on the nature of the business. It must be sufficient to ensure the successful operation of the enterprise. The amount of investment for a low-cost business enterprise will necessarily be lower than the amount of investment in a high-cost enterprise. The E-2 investor must hold ownership of at least 50% of the business enterprise.

On the other hand, the permanent resident investors visa also known as the EB5 or the Employment Creation Greencard requires an investment of at least $1,000,000 or $500,000 depending on where the enterprise investment is located.

Both types of visas allow the investor as well as their spouse and minor children to reside in the United States. Spouses of E2 visa holders are also entitled to an employment authorization card while their children may legally study in US schools.
   
Legitimate Wealth Only

The pertinent regulations found in 8 CFR Section 204.6 (j)(3) is clear on the specific requirements on the source of capitalization for an investors visa. For a Filipino national, a petition for an investors visa must include the following proof to show that the capital used for the investment comes from a lawful source: (i) Philippine business registration records; (ii) Corporate, partnership and personal tax returns including income, franchise, property (whether real, personal, or intangible), or any other tax returns of any kind filed with in five years, with any taxing jurisdiction in or outside the United States by or on behalf of the petitioner; (iii) Evidence identifying any other source(s) of capital; or (iv) Certified copies of any judgments or evidence of all pending governmental civil or criminal actions, governmental administrative proceedings, and any private civil actions (pending or otherwise) involving monetary judgments against the petitioner from any court in or outside the United States with the past fifteen years.

Just like the case of Ronaldo above, possession of a significant amount of money is not enough. There must be proof that the capital was amassed in a legitimate way. However, it does not necessarily mean that the capital has to be from income earned through employment or business. It can also be shown that the capital was obtained by a loan or gift from a family member, by way of inheritance or even by lotto winnings.

Active vs Passive Investment

Obtaining an investors visa require the applicant to engage in an active investment and not a passive investment.  The mere purchase of a real estate property will not qualify an individual for an investors visa. There are countries that do  allow passive investments to qualify the applicant for an investors visa. However, the US does require that the investment be an active one before a visa is approved and issued.

There are undoubtedly individuals with substantial capital who merely wish to diversify their investments to real estate in the US with no intention whatsoever to live in the US. However, for individuals with intentions to seek for an investors visa to permanently live in the US, having “unexplained wealth” will not be sufficient. The source of the capital has to be documented.

(Tancinco may be reached at law@tancinco.com or at 02 8877177)