Month: November 2012

On June 15, 2012, President Barrack Obama granted temporary retrieve to young undocumented immigrants by granting them deferred action. As of November 15, 2012, the U.S. Citizenship and Immigration Services received approximately 298,834 applicants.  But since the option given is only temporary in nature, approximately one million undocumented young immigrants are still looking forward to the passage of the DREAM ACT.

Recently, on November 27, 2012, Republican Senators John McCain, Kay Bailey Hutchinson and John Kyl introduced the ACHIEVE Act which is their party’s version of the DREAM Act.  The ACHIEVE Act which stands for Assisting Children’s Helping them Improve their Educational Values for Employment Act provides a distinct way of obtaining legal status for undocumented young adults.  How different is this new bill from the DREAM Act?

The DREAM Act: Pathway to Citizenship

In December 2010, after the House passed the DREAM Act, the Senate failed to pass this bill. When the Congress opened session in 2011, the DREAM Act was re-introduced with the hope that it will finally be passed into legislation before the 112th U.S. Congress closes. This bill would have helped tens of thousands of undocumented young adults who have spent their childhood in the United States to obtain legal immigrant status if the following criteria were met: (1) must have come to the United Sates before they turned 16, (2) be under the age of 35; (3) have lived in the United Stats for at least five years; (4) graduated from high school or passed an equivalency examination; (5) have good moral character and (6) attended college or enlist in the military for two years.

In a few weeks, the 112th Congress will close session and no action on the DREAM Act is in sight. Interestingly, the Republicans introduced the ACHIEVE Act, a last minute alternative to the DREAM Act, which according to the sponsors, has been the subject of ‘behind the scenes ‘discussion among Republican lawmakers for quite sometime.

ACHIEVE Act: Temporary W Visas

The ACHIEVE Act clearly does not provide a pathway to citizenship for the undocumented youth. In essence, this bill would give temporary status to young adults less than 28 years old who entered the country before the age of 14 in order that they could finish college or enter the military service. New  “W” nonimmigrant visas are being introduced in this Achieve Act.  As a first step, it provides a W1 visa, which would be granted for six years to qualified undocumented youth. This W1 visa would allow young adult to attend college, serve in the military and work legally.

When the W1 visa expires in 6 years, the young adult will be granted a 4-year W2 conditional nonimmigrant visa. It will be granted only if there is proof of attainment of a bachelor’s degree, an associate degree with 2 and half years of work or 4 years of military service.  

The 4-year W2 visa is still a conditional non-resident visa and after it expires in 4 years, the young adult may apply for a third nonimmigrant W3 visa. This W3 visa will have a 5-year validity period with a 4 year renewal option until the holder of this visa finds his/her own way of applying for the immigrant visa through other means either through employment based petition or family based petition.  If the W visa holders will not have their own petitions, they will forever be W visa holders as long as they meet the eligibility requirements to maintain such visa.

Comparatively, the DREAM Act sets the path to citizenship in 6 years. If a young undocumented immigrant qualifies for the DREAM Act, it shall provide for a six years of conditional residence which will allow them to study, work and stay legally in the United States. The conditional residence is removed after 6 years if the individual graduates from a 2-year vocational college, completes 2 years toward higher education degree or serves in the military for 2 years. Thereafter, s/he is allowed to apply for U.S. citizenship.

Lame Duck Session

The motives of the sponsors in introducing the ACHIEVE Act during the lame duck session of the Congress is not to pass this bill considering that the Congress is currently focused on critical fiscal issues at the moment. In fact, the sponsoring Senators admitted that they are not optimistic about this ACHIEVE Act. In his public statement, Senator Kyl said that they introduced this bill to “get this ball rolling” before the Senate session ends. Since the proponents of this ACHIEVE Act, Senator Kyl and Senator Hutchinson are retiring this year, it is their hope that their version of the DREAM Act could be re-introduced in the next Congress, even in their absence.

Young Filipino Undocumented Immigrants

The statistics released by the U.S. Citizenship and Immigration Services indicate that the Philippines as one of the top 10 countries whose nationals applied for the deferred action. Mexico is number one on the list while the Philippines is listed as number 10. There is no exact figure on how many more DREAMers are of Filipino descent. But majority of those we have assisted, so far, are aspiring to obtain permanent solutions to their immigrant status rather than the temporary alternative being proposed. They would rather be DREAMers than ACHIEVErs.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)

As he was testifying on the stand, Jorge was staring blankly, neither looking at the immigration judge nor to me as the counsel for his wife. When asked about how he felt about the potential of being separated from his wife, Jorge answered the question with another question: “ What will happen to my boys? They have dreams and a good future. I will not be able to sustain their education as a single parent if you order my wife deported today!”  I looked at him, teary-eyed myself as their counsel and a parent too, easily understanding what he was trying to say. But did the immigration judge grant the request for waiver of Jorge’s wife and allowed her to stay in the United States?

Past Fraud and Misrepresentation

Susan entered the United States with a false identity. She became a lawful permanent resident and eventually a U.S. citizen. The fraudulent misrepresentation of Susan eventually caught up with her. She was taken into custody and criminally prosecuted for a federal crime. Her arrest came after so many years have passed, after she had married Jorge, a United States citizen and after giving birth to two brilliant children who are now teenagers.

Considering that she possesses seemingly valid immigration documents, Susan was able to work as a caregiver, devoting most her time taking care of ill children. She received several commendations for her work dedication and there is no doubt that her employer recognized how much her kind-hearted soul had helped several patients who are mostly U.S. citizens.

For many years, Susan lived like a normal legal resident. But she also admitted, that she had lived a fearful life, with nightmares of her being caught anytime for the mistake that she committed in using a ‘false’ identity.

Just like any individual who enters with a false name or identity, Susan was referred to the immigration court for deportation/removal. She availed of a waiver relief. If this waiver is granted, she will be allowed to stay in the United States with her family. On the other hand, if it is denied, she will be ordered deported by the immigration judge.

The Waiver Application

The Obama Administration has prioritized certain individuals for deportation. These include (1) terrorists and those who are threat to national security; (2) those who have been convicted of serious crimes and (3) those who have committed fraud. An application for waiver may be filed for those who committed fraud and misrepresentation as it is for those who have committed certain crimes.
An application for waiver is not simply an immigration form that one has to accomplish and submit. It requires more than just answering the questions on the form. The law requires that the applicant show a qualifying relative and that the qualifying relatives will suffer extreme hardship should the applicant be ordered removed.

The qualifying relatives should be either a parent or a spouse or both, who are lawful permanent residents or are citizens. The children who were born in the United States may not be considered as “qualifying relatives” for purposes of the waiver application. It is not possible to be granted a waiver if the individual in deportation or seeking waiver only has U.S. citizen children. It will also be challenging if there is a qualifying U.S. spouse but he does not present circumstances that will support a finding of “extreme” hardship.

Proving Extreme Hardship

The standards for extreme hardship are very high. The hardship should be more than the difficulties that will be experienced by the qualifying relative as a result of the deportation.  Several case law including the case of Matter of Cervantes, 22 I&N Dec. 560 serve as guides in determining what constitutes hardship. The factors to be considered are (1) presence of green card holder or U.S. citizen family ties of the qualifying relative; (2) country conditions in the country of relocation and qualifying relative ties to that country; (3) financial impact of departure from the United States; (4) significant health conditions, particularly when tied to unavailability of suitable medical care in the country of relocation.

In filing the application for waiver of the fraud, the applicant must include all documents and written testimonies showing the varying factors that may be the basis for extreme hardship. Each individual case is different and so are the circumstances of the case.  An applicant must not only be thorough in proving the factors that constitute the fraud, he should also be remorseful about committing that fraud. The immigration judge or the immigration examiner who will be adjudicating the waiver application will have to weigh and balance all the hardship factors against the nature of the fraud.

In the case of Susan, the qualifying relative is Jorge, her U.S. citizen spouse. The two teenagers who are U.S. citizens are not considered qualifying relatives. But despite the fact that they are not qualifying relatives, Jorge was able to show that the hardship of her children becomes his hardship as well. In testifying in immigration court, he related how his children’s dreams of becoming professionals and how the children informed him of their desire to keep the family together.  The education, health and social life of the children will be affected should the mother be separated from them. With Jorge’s tear jerking testimony, Susan’s remorseful statements on the stand and other supporting documents, the immigration court granted the waiver. Susan was granted a second chance and she promised to be a good citizen, spouse and mother to his growing children. Family reunification prevailed. However, not all waiver applications end happily. Since committing fraud is on the priority list for denial of visas and a common reason for deportation, one must try to avoid committing fraud and be wary about its adverse consequence.

(Tancinco may be reached at law@tancinco.com or  at 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)