Month: May 2011

A recruiter was able to place several teachers to work in different school districts in the US. These teachers are now gainfully employed. Unfortunately for the recruiter, she is facing a serious predicament for violating United States human trafficking laws.

Universal Placement International recruited teachers to work in the United States sometime in 2006. A work program was advertised in the newspaper and several teachers responded to the advertisement. The applicants were interviewed and were asked to pay $5000 upon submission of their documents.

As soon as the recruitment fee was received, petitions for H1B visas were processed through the recruitment agency. When these were approved and the applicants concluded their interview with the U.S. Embassy, the teachers were asked to pay an additional $10,000. Failure to pay the additional sum would result in forfeiture of the first $5,000 and the teachers would not be permitted to travel to the United States as their passports would be withheld. Considering their desire to work abroad after obtaining massive loans to pay the recruitment fees, the teachers paid the demands of the recruiter.

Upon their arrival in the United States, the recruiter placed the teachers in school districts in Louisiana.

According to the court records, the defendant recruiter “threatened abuse of legal process in an effort to intimidate and control” by threatening that she would have teachers deported if they start speaking against her, or, if they do not comply with her demands. A specific example given in the case involved the situation where  certain teachers planned to change their housing arrangements to save on the high cost, but the recruiter became upset and told the teachers not to move and threatened to deport them. Recruiter also made additional threats to sue, allow visas to expire and terminate teachers if the teachers did not pay additional fees demanded by the recruiter.

Having garnered enough courage to put a stop to the recruiter’s maltreatment, a group of these H1B (professional worker visa) teachers filed a class action lawsuit against the recruiter before a federal district court (Mairi Nunag Tanedo et al v. East Baton Rouge Parish School Board, et al Case No. SACV 10 1172-AG, 2011 US Dist Lexus 50754).  The plaintiff teachers filed several charges which include, among others, violation of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA), fraud, declaratory relief concerning the validity of certain contracts due to undue influence, RICO violations, as well as unfair business practices in violation of Business and Professions Code.

Non Physical Coercion

The recruiters and the other defendants filed a Motion to Dismiss. Their position is that there is lack of severity of the teacher’s financial situation and working conditions. The TVPA was enacted to combat trafficking persons into sex trade, slavery and slavery like condition. The defendant claims that with the teacher’s employment, they were not treated in a manner that would amount to any of the prohibited activity. In fact, defendant recruiter claims “teaching high school math and science hardly qualify as the type of activity targeted by Congress.

While they were not “physically” treated in a slave-like condition, the District Court found the TVPA charges against defendant as a valid claim. In the decision dated May 11, 2011, the court stated that involuntary servitude also includes non physical forms of coercion. It is sufficient that the defendant/recruiter’s conduct created a situation where ceasing labor would cause plaintiff/teachers serious harm. It was clearly stated that TVPA is not only about heinous crimes perpetrated against the victims but also covers various types of fraud and extortion leading to forced labor.

Threatening Deportation Causes Serious Harm

The District Court states that threatening deportation for violation of immigration law is an act that caused serious harm to the teachers. It recognized that the recruiter engaged in a fraudulent scheme to financially manipulate the teachers through the various threats she perpetrated.  These threats of deportation and threat to have the teachers dismissed so their visas would expire is an abuse of legal process since the goal was to intimidate and coerce the teachers into ‘forced labor’. The teachers had no choice but to continue working because they have incurred loans to pay the recruiter and the only way to re-pay all these obligations is to work. They just did not want to work, but they “needed “ to work.

Avoiding Manipulative Acts

When we hear about human trafficking, we usually associate it with involuntary servitude where an individual is forced to work without pay or with minimal wages. Forcing a worker to render services under threat that she is going to be arrested, imprisoned and deported are the classic cases of human trafficking.  However, with the decision of the U.S. District Court favoring the H1B teachers, the employees prevailed in their right to be treated justly and with dignity. The defendants may still file an appeal on this decision and the decision may still not be final. But the U.S. District court decision is worthy of commendation as indeed psychological coercion is equally worse as physical coercion.

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

Remarriages are commonly looked upon as fraud in immigration.  A letter emailed to me by a reader raises this serious concern:

    “ I came here (US) on a tourist visa and I was able to change my status to H1B. My wife at the time was given an H4 visa. Before my visa expired our relationship fell apart, and we got divorced. She got married to a US citizen, and I’ve been out of status for 12 years now. Her marriage did not work out and she divorced her husband. Now, she’s a US citizen and is fighting breast cancer. I took care of her during her chemotherapy and we got back together. If we remarry, will she be able to petition me? “-  Jim

A US citizen may petition a spouse as an immediate relative. For marriage to be valid, prior divorce must be valid. The divorce must be valid under the laws of the jurisdiction granting the divorce. This divorce decree must also be recognized in the State or country where the couple was residing.

In the case of Jim, if the divorce was legally recognized, there should not be a problem about reconciling and remarrying his spouse again. The main concern is whether Jim’s spouse really had a valid marriage with the US citizen. If the marriage to the US citizen was only intended to obtain legal status, and both Jim & his spouse really did not separate then the petition by his spouse may be denied. These are usually referred to as “sham divorces” and the wife may be considered to have entered into a fraudulent marriage. While she is now a US citizen, there is still a possibility that an investigation will be conducted not just focusing on Jim’s marriage but on his wife’s marriage to the US citizen.

Not all remarriage cases are fraudulent. If in the twelve years of their separation, they have indeed lived separately; and, subsequently reconciled, then the suspicion or presumption of fraud may be overcome. Jim may remarry; however, he will expect to undergo an extensive examination on the merits of their marriage and their prior divorce. His chance of receiving the green card depends on what proof is submitted or gathered by the immigration officer.

The Real Case of a Sham Divorce

In a related remarriage case of Anna and Roger, the USCIS was right in its finding of fraud.

Roger was married to Anna in the Philippines. He left for the US on a visitor’s visa and then divorced Anna. This came as a surprise to his wife but Roger explained he needed to file this divorce to obtain his green card.

Thereafter, Roger married a US citizen, Michelle and they lived together for two years. While married to Michelle, he continues to communicate with Anna. He visited Anna regularly in the Philippines. Anna and Roger had a child born during the time that Roger and Michelle were married. As soon as Roger got his green card, he abandoned Michelle and divorced her.

Roger then applied for naturalization to become a US citizen. During his naturalization interview, it was noticed in his application that he had a child from Anna while living with Michelle. This raised a red flag for the USCIS examiner and his case was investigated. Michelle signed a written document when the US ICE agents visited her. She said that Roger used her to get the green card and did not know that she was still having an affair with his ex-spouse.

Roger’s application for naturalization was denied. He subsequently went back to the Philippines to remarry Anna. He is, however, not allowed to remarry in the Philippines because their first marriage is still valid in the Philippines. May he still file a petition for Anna and their child?

De Facto Marriage

While the Philippines does not recognize Jim’s divorce, his decree of divorce is recognized as valid in the State where it was obtained. He obtained his divorce in California and is good for purposes of remarrying a US citizen also in the US.

Unfortunately, Roger’s legal problem with the US Citizenship and Immigration Services is not whether the divorce is recognized for purposes of the petition. His main problem is that he committed “fraud” in regards his marriage to Michelle. While the divorce is legally valid, his actions while he was still married to Michelle indicate that the divorce was actually a sham divorce.  Jim, in fact, still had a “de facto” marriage to Anne.

Roger will have to overcome legal obstacles not only in his petition for Anna; but also in saving his own permanent resident status from being revoked.

Entering into marriage carries various rights and obligations for a couple. This is also true if the couple is divorced. Much as one desires to legalize one’s stay in the US, marrying for convenience and entering into a sham divorce are to be avoided. In reality, sham marriages results in serious adverse consequences and are usually compounding problems than solutions.

(Tancinco may be reached at law@tancinco.com or at 02 887 7177 or 02 721 1963)

Marc was a holder of a ten year multiple entry visitor visa issued to him in 2005. Since its issuance, Marc would visit her daughter, Marissa, who is a student in a California university. This year, Marissa is finally going to graduate and Marc would like to attend her graduation ceremony.

Unfortunately, Marc received a notice from the US Embassy Consular Section informing him that his visitor was already revoked last month. He is being asked to go to the US Embassy so they can physically cancel the visa. In this letter, he was also told that he may no longer use his visa even if, on its face, it still has a remaining validity period of five years.

Marc was disappointed when he received this news but at the same time he was not surprised. He has heard from some of his colleagues who used their B2 visas being told at the port of entry that their visas have already been revoked despite the fact that it is still not expired. Marc’s prior immigration history many years back may have caused the revocation of his visa.

Power to Revoke

The Department of State, through the consular officers, is given authority to issue visas to foreign nationals. They are also afforded the discretion to revoke and cancel visas after they have been issued. This power and discretion on the part of the consular officer has recently been reinforced in an April 27, 2011 regulation which was released by the State Department. The visa holder’s ability to request for reconsideration of a revocation has been eliminated. It also allows the consular officer to revoke the visa without notice if it is “impracticable” to notify the visa holder.

According to the new regulation, “security concerns” was taken into account in justifying additional authority to consular officers.

Reasons for Revocation

There are statutory grounds that allow revocation of an already issued visa. The consular officer is mandated to exercise this power only within the bounds of the statutory provisions of applicable law.  Nevertheless, it appears from the reading of the rules that consular officers have wide discretion to exercise this power.

When a consular officer receives derogatory information that renders the visa holder ineligible for the visa that he currently holds, a revocation of the visa may take place.  There must be an actual finding of ineligibility to support the revocation.

Aside from eligibility and national security grounds for revocation, the other enumerated grounds for revocation include: the visa holder was ordered excluded from the US, permission was requested and given to the visa holder to withdraw his application for admission, and, prior nonimmigrant waiver granted was withdrawn.

Provisional Revocation

Consular officers are given the authority to revoke visas immediately while considering facts determining grounds for ineligibility.  This is called the “provisional revocation.” Generally, notice of revocation shall be provided to the visa holder but only “if practicable.” This means that even if the visa holder is not yet notified, his visa may be considered revoked provisionally. Whether or not the visa holder is notified, once the revocation is entered into the State Department’s Consular Lookout and Support System (CLASS), the visa is no longer valid for travel.

When the findings of the consular officer become final to warrant a revocation, after a provisional revocation, the visa holder is notified and will be asked to submit the issued visa to be stamped with the word “REVOKED”. The rules are clear that if the visa holder does not surrender the visa for physical cancelation, the finding of revocation still stands.

Re-Applying For the Visa

Since 1997 judicial courts have been divested of jurisdiction to review the findings of the consular officers in regards revocation of visas. The latest regulations also eliminate the request for reconsideration of a revoked visa rendering the findings of revocation final. The visa holder who believes that the visa is revoked without sufficient basis may then re-apply for another nonimmigrant visa. In this new application, he will be afforded an opportunity to prove his eligibility for the re-issuance of the visa that was previously revoked. This will require the applicant to be in possession of countervailing proof of eligibility.

Danger of Losing Visas

Each year it has become complicated to obtain visas for some who are truly deserving of this benefit.  Fraudulent applications as well as abuse in the use of nonimmigrant visas have been the reason for heightened standards for visa applications. With the extended discretion granted to consular officers in revoking already issued visas, a nonimmigrant visa holder should understand the value of having one in his possession and make sure that it is use accordingly in order to avoid losing it.

(Tancinco may be reached at law@tancinco.com or at 02 8877177 or at 02 721 1963).