Month: August 2012

Jessica is a green card holder who was continuing her studies in Manila. She visits her parents in the United States every six months during her semester breaks. While in her senior year in college, Jessica gave birth to a child. The father of the baby refused to acknowledge the child and abandoned Jessica.

After graduation, Jessica was asked by her parents to return to the United States with her baby. She is apprehensive about filing a petition for the child since she is only a green card holder. She was told that it may take a couple of years before the child gets an immigrant visa. Is there a way that the child may immediately accompany Jessica back to the United States?

Derivative Child

A spouse who gets married or a child born before the principal immigrant’s admission to the United States gets the principal’s priority date and can accompany or follow-to-join the principal beneficiary. These family members, also called derivative beneficiaries, do not need to have separate visa petitions. Their names are usually declared and included in the visa applications of the principal beneficiaries.

The same rule applies to a green card holder who gives birth while on a temporary trip abroad. For the child to return to the United States with the mother, there are two requirements that must be met: (1) child must travel within two years from birth, and (2) green card holder parent must travel with the child and the travel must be the first return to the United States after the birth of the child.

In the case of Jessica, she can return with her baby to the United States before the latter’s second birthday. Jessica’s return to the United States, after the birth of her child, should be her first return. This means that she should not travel without the child upon her return to the United States. Otherwise, the child loses derivative status.

Recording Child’s Status

As the child will not need a visa to accompany his green card holder parent, certain documents must be presented to the immigration inspector at the United States port of entry. The accompanying parent must be able to show the parent-child relationship. Among the documents that must be presented are the passport of the child, green card of the parent, birth certificate of the child from the National Statistics office, and, proof that the parent has not abandoned her residence in the United States.

The Customs and Border Protection (CBP) inspector will process the child for the green card at the point of entry and will create a record of admission for lawful permanent resident.

Waiting Too Long to Return

One of the requirements of conferring immigrant status to the child is that the accompanying parent must have maintained resident status in the United States despite the temporary stay in the Philippines. Hence, it is important to keep in mind that there is only a two-year period to return to the United States after the child’s birth. In addition, those who return after more than a year must be able to demonstrate to the CBP inspector that the stay outside the United States was temporary only and that the ties in the United States are strong.  Thus, if there is a temporary work abroad, one should be able to carry an employer letter indicating that the individual was on a temporary assignment. Likewise, if the immigrant is studying, school record or transcript must be carried together with the other documents upon arrival in the United States.

Children Below 21 Years Old

Conferring immediate resident status to the child less than two years old without a visa application at the consulate applies in limited cases where the requirements mentioned above are met. It applies after the parent receives her green card status. In the case of children born before the parent applies for immigrant status, they may either be derivative beneficiaries of family petitions or may also acquire a following-to-join status as derivative beneficiaries.

Children below 21 years old may have the status of an immigrant based on their parents’ acquiring green card status. These apply to children born before the parent receives their immigrant visas and the parent’s visas were acquired under any of the family or employment based preferences categories. Unlike the rule on those two year old or less, these below 21-year-old children must apply for visas at the U.S. consulate as derivative children. They get their parent’s priority dates as following-to-join even after their green card holder parent has left for the United States.

Severe Backlogs in Family Petitions

For the month of September 2012, the U.S. Department of State released its visa bulletin showing the priority dates that are being processed for family petitions. For adult children it may take anywhere from 10 years to 20 years before the visas are processed. Depending on the circumstances of the case, conferring derivative status to a child below 21 years old at the right time may avoid lengthy waiting periods. If the child is not qualified as a following to join child, filing the petition right away after receiving the immigrant visa may be the appropriate route.

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

Paolo was only six months old when he arrived in California with his parents. After his visitor’s visa expired, Paolo’s parents decided that they continue to stay in unlawful status. Paolo practically grew up in the United States and did not learn about his immigration status until he was 16 years old. When he discovered that he was undocumented, Paolo stopped studying and instead worked, without authorization, as a caregiver for a family friend. In the meantime, Paolo’s parents were divorced and Paolo was left to the care of his Uncle Ramon.

After hearing of a “deferred action” initiative for young immigrants, his Uncle Ramon sought legal assistance in order that Paolo may obtain a work permit and be issued a proper identification. On August 15, 2012, Paolo was told that the deferred action is only temporary in nature that will last for only for two years. Also, when he applies for deferred action, the U.S. Citizenship and Immigration Services will have access to all his biographic and other personal information and there is uncertainty whether this information will be used in the future against him.  Paolo still insists on requesting for deferred action. He is willing to take the opportunity to be able to get at least an identification document and a social security number.  He plans to pursue his college education as soon as he gets “deferred action.”

Thousands of undocumented young immigrants feel the same way as Paolo. Despite uncertainties of future risks of applying for deferred action, they are determined to take advantage of Obama’s new initiative. On the first day of filing for consideration for deferred action, thousands of young immigrants who are out of status lined up at the offices of various advocacy organizations to attend workshops on  “deferred action”. The U.S. Citizenship and Immigration Services began accepting requests on August 15, 2012 and it is expected that there would approximately be one million young undocumented students who will file requests for deferred action.

The New Initiative: DACA

On June 15, 2012 President Obama announced his immigration initiative on deferred action. To distinguish the implementation of deferred action to the benefits of the proposed DREAM Act for undocumented young immigrants, the U.S. Department of Homeland Security introduced a new acronym- D.A.C.A. referring to the Deferred Action for Childhood Arrivals (DACA).
 
DACA helps a large population of young undocumented immigrants who came to the U.S. under the age of 16 acquire “deferred action” and obtain employment authorization document. To be eligible for DACA, an individual should have been under the age of 31 as of June 15, 2012 and should have come into the U.S. before reaching his 16th birthday.  The Filipino advocate for the DREAM Act, Jose Antonio Vargas, an award-winning journalist, is unfortunately disqualified because he just turned 31 prior to June 15, 2012. However, those who turned 31 years old after June 15, 2012 are still eligible.

Not for New Arrivals

To be considered for DACA, there must be proof of physical presence in the United States for five years prior to June 15, 2012.  The young immigrant should have continuously resided in the United States since June 15, 2007, up to the present time. Hence, those who entered after June 15, 2007 shall be disqualified from DACA. Recently arrived young immigrants may not apply for DACA. Those who plan to travel and apply for DACA for their children should be aware of this five-year physical presence requirement and are discouraged from abandoning their children abroad to become TNTs.

Must be”TNT” to Qualify

DACA is only for those who are undocumented; either they entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012. Those children who are still in valid nonimmigrant status are not eligible. One parent of a child in valid “M” student status asked whether his child would qualify for DACA. His child wants to apply for DACA and a work permit. He was told that DACA is only for undocumented and since his child has a valid immigration status, he may not qualify for DACA.

Uncertainty of the Program

It is clear based on several pronouncements by the Department of Homeland Security that DACA is not an amnesty or a path to citizenship. There are only two things that a young immigrant may take out of this DACA program: (1) reprieve from deportation and (2) work permit or employment authorization. It is also a temporary fix for only two years and if there is change of administration, there is a possibility of changes in the DACA program. Nevertheless, like Paolo, thousands of young immigrants are willing to take advantage of DACA.  They perceived DACA as a small window that allows them to live, even on a temporary basis, without fear of deportation, harassment or exploitation and alleviate, even a little, the difficulties they face as undocumented immigrants. In essence it provides them that sense of security that that they will not have to face being torn away from the land that they know in their hearts is also their home. And for these reasons, they are willing to take the risk involve should there be changes in policy in the future.

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