Month: June 2012

Emmanuel was seven years old when he travelled to the United States with his parents. After the period for their authorized immigration stay expired, his parents decided to stay on as undocumented immigrants. Emmanuel is now 20 years old. Being an undocumented immigrant, Emmanuel has no valid driver’s license and social security card. Emmanuel stopped going to school and is one of many who are looking forward to passage of the DREAM Act so they can be granted resident status and eventually become U.S. citizens.

There are approximately 800,000 DREAMers, the young immigrants who are undocumented.  They were brought to the United States by their parents at a tender age. The decision to travel to the United States was not theirs. Neither was it their choice to become undocumented.  Emmanuel is a DREAMer.

In five months, the U.S. presidential election will take place. Seeking re-election, President Obama issued a policy in support of the DREAMers. The current Congress stalled the passage of the DREAM Act and realizing the difficulty of passing a bill through congress, the President announced his administration’s new policy of “Deferred Action for Young Immigrants”. This new policy directs the Department of Homeland Security to halt the deportation of DREAMers. Under this directive, the young undocumented immigrants will be issued employment authorization cards.

Deferred Action Policy

Those who will benefit from the Obama deferred action policy includes undocumented immigrants younger than 30 years old who were brought to the United States before the age of 16 and have lived in the United States for at least five years. They must also have no criminal record, have earned a high school diploma, remains in school or served in the military. If DREAMers meet these requirements, they will be granted a 2-year deferral from deportation or removal. Work permits or employment authorization documents will also be issued to allow them to legally work.

President Obama announced this deferred action policy in an attempt to provide reprieve to young innocent immigrants. This is a continuing effort from last year’s “prosecutorial discretion” policy where the undocumenteds were classified from high to low priorities. Those considered high priorities are felons, repeat border crossers and others who are considered security risks.

Temporary

Unlike what was proposed in the DREAM Act, the deferred action policy is only a two-year relief. This allows qualified DREAMers to apply for employment authorization for only that two-year period. No permanent resident status will be given to DREAMers.

Band Aid Solution

The immigrant community and advocates welcomed President Obama’s deferral policy as a positive development for the thousands of undocumented young individuals who have been waiting for many years to obtain status. While it does not grant any resident status, the fact that it provides temporary relief is gratifying to young immigrants who are now given the chance to move on with their schooling or careers.

There are, unfortunately, those who are not too happy with this deferred action policy. The Republicans claim that this temporary solution only complicates the matter of providing a more permanent solution to the DREAMers. If Governor Romney wins the November presidential election, there is no guarantee that this new policy will remain. If so, the thousands of young immigrants will again be deprived of their ability to work and stay in the absence of a grant of the deferred action.

Another criticism that was raised after the announcement of this new policy is that those who will be granted work permits will be competing for jobs in a limited job market.  The hope, however, is that most of the young immigrants will opt to continue their schooling instead of competing in the job market.  Most of the young immigrants are also likely to be skilled workers and talented individuals who will contribute and stir economic growth instead of propelling an increase in unemployment rate.

No Green Cards

The congressional bill called the DREAM Act would have allowed young undocumented immigrants to apply for green cards and was a pathway to U.S. citizenship. As soon as they become U.S. citizens, they will have the opportunity to petition their parents. In contrast to the DREAM Act, the current deferred action policy will not provide resident status, which means that no green card will be issued.

Mixed Reactions

Many were elated when President Obama announced last week the deferred action policy. While it has a positive and hopeful effect, the uncertainty that it provides after two years is also giving pause to many. The children’s application for deferred action, for example, may expose the parents who are still undocumented. If a new President is elected and revokes deferred action, will these DREAMers be subjected to removal? While many are excited, still there are those who remain fearful. There are mixed reactions from those who are affected by this policy. Still it is expected that a significant number of DREAMers who have waited patiently for many years to be granted status are expected to take the risk and apply. This piece-meal benefit of deferred action may be a road to the dream but is not yet the attainment of the DREAM.

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

Anna, a widow of a U.S. citizen, e-mailed me about his deceased spouse’s child and requested my assistance. She writes, “My husband has a child from his prior marriage. This child was secretly kept from my husband. I was told that the child was born after my husband was already separated and divorced from the mother. Thereafter, the child was abandoned and left to the care of a grandmother. My husband died when the child was eight years old. The grandmother has since written to me about the child and his history and asked for my help on the child’s behalf. I did. I supported this child’s education until he got his high school diploma. I want to know if this child is an automatic U.S. citizen since his father was a U.S. citizen. If he is not eligible to derive a U.S. citizenship, can I petition this child instead?”

Derivative Citizenship

While most children of U.S. citizens are successful in obtaining citizenship, there are those who do not meet the specific requirements of the law. Hence, not all children of U.S. citizens may derive automatic citizenship.

A child born outside the United States where one or both parents are U.S. citizens may acquire U.S. citizenship at birth as long as certain eligibility requirements are met. One of the important factors to prove is the residence of the U.S. citizen parent prior to the birth of the child. For those who were born after November 14, 1986, the U.S. citizen parent citizen must prove that he has been physically present in the United States for a total of at least five years.

Assuming that the father resided in the United States for five years before the birth of the child, Anna may claim that the child is automatically a U.S. citizen.

Stepmother Petition

If prior to the birth of the child, the deceased father did not have five years of physical residence in the United States, the child will not be considered a U.S. citizen at birth. Generally, in these cases, the U.S. citizen parent must file a petition for the child. As soon as the child enters the United States as a lawful permanent resident, the latter may apply for citizenship pursuant to the Child Citizenship Act. Under this law a child is a citizen by birth if (1) one parent is a citizen by birth or naturalization; (2) the child is under 18; (3) the child is a green card holder; and the child is residing in the US in the legal and physical custody of the citizen parent.

In the case of Anna, since the U.S. citizen parent is deceased, Anna as the stepmother may file a petition for immigrant visa on behalf of her stepchild. There is no requirement that the stepmother show an active parental interest in the child. What is important to prove is that the stepmother-stepchild relationship was established when the child was below eighteen years old. The required “relationship” here is simply the legal tie that connects the stepmother and the stepchild, i.e. establishing the fact that the stepparent and the biological parent entered into a valid marriage before the child turned 18 years old.

For the stepmother petition to be approved, supporting documentation regarding the marriage between the biological parent and the stepmother must be submitted.  This marriage certificate and other proof of marriage must indicate that the marriage was a viable marriage entered into in good faith. If the stepchild’s biological parents were married, proof of annulment or divorce must support the petition to be filed. This divorce decree is a crucial element here since the creation of the stepparent-stepchild relationship depends on the validity of a subsequent marriage between the petitioner and the deceased/biological parent of the stepchild.

Interestingly, the petition may be filed even after the stepchild turns 21 years old. It may also be filed despite the divorce or death of the natural parent. In the case of Anna, the biological parent died resulting in termination of the marriage of the stepmother and the biological parent. Anna could nevertheless file the stepchild petition because the relationship of stepparent and stepchild was deemed to have been established at the time of Anna’s marriage to her stepchild’s biological father. Hence, despite the subsequent dissolution of the marriage through death of the biological parent, Anna may still effectively file the petition of the child.

Stepchild’s Future

I was not sure if it was wise of the grandmother to contact Anna and ask someone she hardly knows to be involved in the life of this child. In any event, the child certainly lucked out. Anna turned out to be caring, unselfish and supportive even though her husband, the child’s father, had long since passed away. Hopefully, Anna’s stepchild is granted derivative citizenship, but even if for some reason he is not, he will certainly have a brighter future in the custody of Anna after he is petitioned and granted an immigrant visa. Maybe I should not comment on the wisdom of the grandmother’s decision. Maybe not all stepparents are like Cinderella’s stepmother.

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