Month: September 2014

Marrying a U.S. citizen does not necessarily entitle a spouse who is out of status to adjust to that of a permanent resident. In some cases, where the spouse entered with a crewman C1/D visa, the law prohibits the filing of an application adjustment of status. Does this mean that this spouse will never obtain immigrant status? Or can the spouse apply for the provisional waiver?

Daniel entered the United States using a C-1 crewman visa under an assumed name. Daniel jumped ship and remained in the United States illegally. After one year, Daniel met and married Michelle, a US citizen. Michelle filed a visa petition for Daniel and it was later approved. Daniel attempted to file for adjustment of status but the U.S. Citizenship and Immigration Services denied the application.

Daniel and Michelle knew of a relative who entered with an assumed name but was able to adjust status. The couple was wondering whether they could just file for the waiver and apply for the immigrant visa through adjustment of status. After ten years, Daniel and Michelle now have three US citizen children. Is there a way for Daniel to legalize his status?

Crewman Visa Holders Without 245i

Visa overstays will generally waived for adjustment of status applicants who are immediate relatives (spouse, child (unmarried and under 21 years) or parent) of a US citizen. However, persons who entered the United States as crewmen are ineligible to adjust their status in the United States unless they are eligible for a waiver under Section 245(i). Here, Daniel is an immediate relative of a US citizen based on his marriage to Michelle. However, Daniel is not a beneficiary of a petition filed on his behalf before April 30, 2001 and is therefore not eligible for a waiver under Section 245(i), and will not be able to apply for his green card within the United States. The case would have been different if Daniel had a prior family or employment based petition filed before April 30, 2001.

Last year, crewman visa holders with immediate relative petitions are provided an opportunity to obtain waivers in the United States. With the provisional waiver approved, the visa may then be obtained at the U.S. Embassy abroad.

As the spouse of a US citizen, Daniel may apply for a provisional waiver of inadmissibility to cure his unlawful presence in the United States. Since March 4, 2013, certain immediate relatives of US citizens may file for a provisional waiver of inadmissibility in the United States to cure the unlawful presence bar before they depart from the United States to apply for the immigrant visa abroad. Applicants who greatly benefit from the provisional waivers are generally those who entered without inspection and are married to US citizens but not eligible for Section 245(i) waiver, applicants who entered as crewman with a C-1 visa and are not eligible for Section 245(i) waiver, and applicants who entered the United States with fiance visas but married another US citizen.

Effect of Assumed Name

In order to be eligible for the provisional waiver, the applicant must be a spouse, child or parent of a US citizen, have an approved I-130 petition, and have a pending immigrant visa case before the Department of States and have paid the immigrant visa fees, and be physically present in the United States at the time of filing the provisional waiver application. Furthermore, the applicant must not be otherwise inadmissible and must demonstrate that refusal of his or her admission to the United States will cause extreme hardship to the US citizen spouse or parent. Once the provisional waiver is granted, the applicant will travel abroad to be interviewed at the US embassy for the immigrant visa, and will be permitted to reenter the United States.

Here, Daniel meets all the eligibility requirements for a provisional waiver of inadmissibility, except for the fact that he is “not otherwise admissible”. Daniel used an assumed name or a fraudulent visa to enter the United States. This is a separate ground of inadmissibility from his unlawful presence in the United States, and may not be cured by the provisional waiver. Only those who have no other grounds of inadmissibility other than being “out of status” may consider filing for provisional waiver to obtain immigrant resident status or green card.

(Atty. Lourdes Tancinco is a partner at Tancinco Law Offices in San Francisco CA and may be reached at 1 888 930 0808 or through tancinco.weareph.com/old, facebook.com/tancincolaw or law@tancinco.com)

Traveling with a valid U.S. visa or a permanent resident card is not a guarantee that one’s entry in the United States is going to be seamless. Anyone with a criminal history may run the risk of removal unless they are U.S. citizens.

Claudia is married to Jim, a U.S. citizen. Despite having resided as a couple for many years, Jim did not file a petition for immigrant visa on behalf of Claudia until 2010 and obtained her green card that same year. In 2013, Claudia and Jim were always arguing about several marital issues including suspicions of Jim committing adultery. One day, Claudia was browsing through the computer of Jim, read an email from a certain Mary and confirmed her suspicions that Jim was having an affair. As soon as Jim arrived from work, Claudia confronted him until Claudia became violent. She took a knife and hurt Jim in his arm. The neighbors heard the scandalous commotion and called the authorities. When the police arrived, they took Claudia into custody.

Jim had a small wound in his arm and did not file a complaint. He refused to testify against Claudia and requested the prosecutor to dismiss the case. Despite his request, the prosecutor charged Claudia with a domestic violence offense. Claudia served 30 days in jail. After she was released from imprisonment, Jim and Claudia reconciled and traveled to the Philippines for a vacation. Upon their return to the United States, Claudia was put in secondary inspection and was issued a Notice to Appear for her removal/deportation hearing. Since she was charged with a felony conviction for domestic violence, she was put in removal proceedings. Jim is worried that Claudia might be ordered removed and be sent back to the Philippines. Does Claudia still have a legal option to remain in the United States? Are all non-U.S. citizens with violent crimes being deported? What can Claudia do?

Criminal Convictions as Ground for Removal

Certain criminal convictions could result in serious immigration consequence for a non-U.S. citizen. This may apply to non-immigrant visa holders and those with permanent resident visas or green card holders. Persons residing in the United States who are non-U.S. citizens and have been convicted of offenses such as controlled substance offenses, theft, firearms offenses, crimes of violence and crimes against moral turpitude may be at risk of being put in removal proceedings. Similarly, a person with criminal convictions trying to enter the United States or applying for a visa at the U.S. Embassy may be denied admission or issuance of the visa.

Domestic Violence
An offense committed in a domestic violence setting can qualify as a crime involving moral turpitude and may be a ground for removal or it could be the basis for being denied entry in the United States. This is what happened to Claudia. The U.S. Customs and Border Protection discovered in their system at the port of entry that Claudia had committed this crime.

In order for Claudia to stay in the United States, she can try to have the felony conviction reduced to a misdemeanor offense or apply for a waiver. Under Section 212(h) of the Immigration and Nationality Ac the eligibility factors for this waiver include among others 7 years of physical presence in the United States and presence of qualifying relative U.S. citizen or lawful permanent resident spouse, child or parent and proof of extreme hardship to the latter. Claudia is still married to Jim and has been in the United States for more than 7 years. Once this waiver is approved, Claudia’s removal case will be terminated.

There are many travelers who enter and exit the United States on visas without realizing the possible consequence of their past action. Having a criminal conviction no matter how petty may have an immigration consequence and it is always best to determine whether the criminal offense has any adverse impact on one’s re-entry into the United States. Green card holders are not exempt from the inconvenience of having to deal with a removal case.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com, facebook.com/tancinco law, tancinco.weareph.com/old or at (02)721 1963)

A Filipino parent of a U.S. citizen child, who is residing beyond her authorized stay in the United States, recently sent me this email:

Is it true that the President will authorize issuance of work permits for parents of DACA? What about parents like us who have U.S. citizen children? Will we also be entitled to work authorization?

The questions raised by this email sender are often asked by those similarly situated. In June 2014, President Obama announced that he will come up with his own executive actions towards the end of summer. Most of the undocumented including parents of U.S. citizens are expected to receive work permits. If these executive actions are released in a few weeks, what impact will they have on the Filipino immigrant community?

Demographics of the Undocumented Filipinos

In a study released by the Pew Research Institute, there are 11.7 million unauthorized residents in the United States. Only 3% of this population is from the Philippine compared to 59% from Mexico. Nevertheless, based on this figure, there are approximately 351,000 undocumented Filipinos residing in the United States. The data released also reveals that three-fifths of those who are present in the United States have been residing as undocumented for a decade or more.

Nature of the Executive Action

For more than a year after the immigration reform bill was introduced in the House of Representatives, President Obama held off, despite pressure from immigration reform activists, from taking any policy actions to change priorities on immigration enforcement. His deference to Congress was more of a political move to exact permanent solutions to a broken immigration system. Since the US Congress had indulged in a “year of obstruction”, the President is determined to release his executive actions even without the help of Congress.

Within his power to do so, President Obama may take action to advance the goals of immigration. More specifically, he can expand the Deferred Action for Childhood Arrivals (DACA) program not only to undocumented children but also to the parents of undocumented children. When it comes to protection from prosecution, he can set priorities for enforcement by deferring deportation and extend employment authorization to the undocumented immigrants.

After conducting several meetings with interest groups, a proposal to reduce backlogs of family and employment based petitions is being considered. While setting the limits on visas is a Congressional act, the President may set priorities on how these numerical limits are counted. Possible executive action includes a proposal that would count only the principal applicant towards the numerical limit exempting derivative children and spouses. If this happens, more visas will become available resulting in shorter waiting period for the petitioning family.

Temporary Reprieve

The issuance of employment authorization and the other proposals that are being considered are only temporary in nature, and it possible that the next administration may choose to unilaterally revoke the executive actions for any reason. Unfortunately, with no new legislation before Congress at this time, the best available solutions for undocumented immigrants are the much-anticipated executive actions.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook.com/tancincolaw or at (02)721 1963)