Month: August 2015

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Global Pinoy

Donald Trump’s hostility to U.S. citizen children of undocumented immigrants

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IN AN EFFORT to curb illegal immigration, Republican presidential candidate Donald Trump announced his plan, if he is elected, to eliminate this birthright citizenship to children of the undocumented immigrants.

Is this plan an effective solution to resolving the broken US immigration system? Why is it that other Republican candidates do not support Trump’s proposal?

Karen entered the United States on a fiancé visa. Her US citizen fiancé George knew that Karen was a victim of a sexual offense and became pregnant prior to entering the US as a fiancée.

Six months after her arrival in the United States, Karen gave birth to Mariel. Meanwhile, Karen and George had a falling out and never got married.

Mariel is a US citizen by birth while her mother has an expired fiancée visa and is now an undocumented immigrant. Having heard of the proposed elimination of the birthright citizenship, Mariel, who is now in high school is wondering if she will be “deported” and divested of her US citizenship should Trump succeed in getting elected President. What is the likelihood that the birthright citizenship will be eliminated?

Birthright citizenship
Unlike in the Philippines where citizenship is determined by the citizenship of the parents, the United States follow the jus soli principle of citizenship. This means that any individual born in American soil is a US citizen at birth irrespective of the nationality of the parents. This birthright citizenship is not a legal principle but a constitutional right enshrined in the Fourteenth Amendment of the US Constitution.

This birthright was historically intended by the framers of the Constitution to place citizenship status above prejudices based on the fundamental belief that each person is born equal regardless of color, creed or social status.

Proposal
The 14th Amendment withstood many challenges in judicial courts and in Congress. Now that it is being mentioned again, it is not clear how this elimination of birthright citizenship is going to take place. In fact, Trump has not specifically stated in detail which proposal he is going to make.

One of the proposals being floated is that both parents must be citizens or legal residents at the time of each child’s birth. The other extremely cruel proposal is that all US citizen children of immigrants should retroactively prove that they were entitled to their citizenship by proving the legal status of their parents.

Mariel’s fear of being divested of her US citizenship will, in all probability, not be a reality. It is election season and it is not unusual that this birthright citizenship is an issue that is being brought up but there are high legal hurdles that will need to be accomplished before that even happens.

A constitutional amendment, for example, requires the vote of two-thirds of Congress and three-fourths of all the states. With the views on immigration as polarized as it is, getting the two-thirds majority in Congress will be an impossible task. Much less will it be any easier to get three-fourths of the states to approve a constitutional amendment.

(The author may be reached at law@tancinco.com, facebook.com/tancincolaw, tancinco.weareph.com/old or [02] 721-1963.)

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Updates

USCIS Transferring Certain Cases from Vermont Service Center to California Service Center

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USCIS has begun transferring certain cases from its Vermont Service Center to its California Service Center. Cases affected include Form I-130, the Petition for Alien Relative, and Form I-751, the Petition to Remove the Conditions on Residence.

If your Form I-130 case is being transferred, USCIS will send you a notice listing the transfer date and the new location where your case will be processed. Your original case receipt number will not change and your case’s processing time will not change, with the exception of the additional time needed to transfer the file to the new location.

If your Form I-751 case is being transferred, USCIS will send you a notice listing the transfer date and the new location where your case will be processed. Your original case receipt number will not change and your case’s processing time will not change, with the exception of the additional time needed to transfer the file to the new location.

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Updates

USCIS to Discontinue Legacy e-Filing System

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USCIS intends to discontinue its legacy e-Filing system so that it can focus its resources on the replacement Electronic Immigration System. This legacy system offered online filing for numerous USCIS forms. After the decommissioning of the legacy e-Filing system, you will be required to use paper forms when filing all categories of the following forms:

  • Form I-131, the Application for Travel Document
  • Form I-140, the Immigrant Petition for Alien Worker
  • Form I-765, the Application for Employment Authorization
  • Form I-821, the Application for Temporary Protected Status
  • Form I-907, the Request for Premium Processing Service

The last day you may start a new form in the e-Filing system is August 30. All forms must be completed and submitted online by September 20. Cases pending that were submitted through the legacy e-Filing system will not require any action on your part.

 

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Updates

New Report Finds Decrease in Mexican Migration to U.S

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According to a new report, the number of people leaving Mexico to reside in the United States (legally and illegally) has sharply declined over the last decade. Researchers at the University of Texas San Antonio and the University of New Hampshire report that, between 2008 and 2012, about 819,000 people migrated from Mexico to the United States. This is a 57 percent decrease from the previous time period (2003-2007) when 1.9 million Mexicans migrated to the United States.

According to the publication’s authors, the major reason for this decline is a change in economics in the U.S. Additional reasons include a declining Mexican fertility rate, stronger border security and enhanced detention and deportations of illegal migrants.

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Updates

Federal Appeals Court Rejects Lawsuit Against Obama Administration Executive Immigration Initiatives

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Last week a federal appeals court unanimously rejected a lawsuit on behalf of Maricopa County, Arizona, Sheriff Joe Arpaio. The ruling states that Arpaio’s challenge to the Obama adminsitration’s executive initiatives on immigration have no legal standing.

According to the appeals court, “We conclude that Sheriff Arpaio has failed to allege an injury that is both fairly traceable to the deferred action policies and redressable by enjoining them, as our standing precedents require …. [Sheriff Arpaio’s] allegations that the policies will cause more crime in Maricopa County are unduly speculative.”

 

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Updates

Upcoming Deadline for TPS Applications for Nationals from Liberia, Guinea and Sierra Leone

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USCIS has issued a reminder to nationals of Liberia, Guinea and Sierra Leone that individuals seeking temporary protected status (TPS) should apply by the August 18, 2015 deadline in order to be considered for the status. TPS provides temporary relief to individuals who are unable to return to their home country due to a natural disaster or civil unrest. Applicants for TPS from Liberia, Guinea and Sierra Leone should include proof that the applicant has been continuously residing in the U.S. since November 20, 2014, In addition, TPS requires security background checks.

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Global Pinoy

Earned Retirement Pension for the Unauthorized Worker?

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Foreign nationals residing in the United States who are unauthorized to work but who are in possession of valid social security numbers contribute to the social security fund.  Will these unauthorized workers be able to receive social security benefits when they retire?

Amelia entered the United States on a student visa in 2002. She was offered a job by a U.S. employer and was able to change status to a nonimmigrant H1B visa. Amelia was able to lawfully obtain a social security number as an H1B visa worker. After 3 years, her visa expired and Amelia had fallen “out of status “.  She found another job but as a caregiver in a healthcare facility and worked without employment authorization.

Since she has a social security number, Amelia’s new employer deducted payroll taxes on her wages. In 2016, Amelia will be 65 years old and would like to find out whether she will be able to receive social security benefits upon her retirement. At present, she is still in unlawful status but is planning to return to the Philippines to retire.

The U.S. Social Security Program

Retired and disabled workers are provided monthly cash benefits if they meet the insured status and certain age requirements. To qualify for the insured status, the worker must have worked in social security covered jobs and must meet 40 quarters of coverage. These benefits are given to both U.S. citizens and non-U.S. citizens as long as they meet the eligibility requirements.

For undocumented workers who are paid cash by their employers, definitely, they are not covered by this program and so are those with inaccurate social security numbers unless they are able to prove their true identity. But for the group of undocumented who pay federal and payroll taxes through wage deduction by their employer, their contributions to the social security program may be clearly traced.

Earnings from Unauthorized Work

There is a special rule for payment of social security retirement benefits to non-citizens. If the unauthorized worker is present in the United States at the time of retirement, s/he should be in lawful status to receive social security benefits. In addition, pursuant to the Social Security Protection Act of 2004, the social security number must have been obtained before 2004 to obtain full benefits without need of proving valid employment authorization. Those who obtained their social security number in 2004 onwards must show proof that the earnings were based on authorized employment.  Amelia will qualify to receive if she can show proof of legal status. Hence, she has to find ways to legalize her stay in the United States to receive the retirement benefits.

If Amelia decides to depart for good and retire in the Philippines, obviously she does not need to show lawful status in the United States. Subject to certain conditions, there will be a possibility for her to receive social security benefits but only after applying for exemption under the ‘alien non-payment provision’ of the Social Security Act The Philippines is one of the countries that is considered as a “social insurance country” for purposes of this exemption.

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

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Updates

USCIS Updates Processing Times for Immigrant Investor Visa Program Office

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USCIS has updated processing times for the Immigrant Investor visa program. Below is a list that shows the form number, form name and processing times for the form processed by the Immigrant Investor Program Office.

Form I-526, the Immigrant Petition by Alien Entrepreneur
Used by an entrepreneur wishing to immigrate to the United States
Processing timeframe: 13.4 months

Form I-829, the Petition by Entrepreneur to Remove Conditions
Used to remove lawful permanent resident conditions for immigrant investors
Processing timeframe: 13.6 months

Form I-924, the Application for Regional Center Under the Immigrant Investor
Used to apply for regional center status
Processing timeframe: 11.5 months

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Updates

U.S., Canada and Mexico Join to Create North American Trusted Traveler Program

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The U.S. Department of Homeland Security (DHS) is joining with Public Safety Canada and the Secretariat of Governance of Mexico to describe first steps to create a North American Trusted Traveler network. This new agreement, signed by the Secretary of Homeland Security, will make it easier for eligible travelers in the U.S., Canada and Mexico apply for expedited screening programs.

As part of this agreement, Mexican nationals who are member’s of Mexico’s Viajero Confiable program will be able to apply for the U.S.-Canada NEXUS trusted traveler program. Canadian citizens who are members of NEXUS will be able to apply for the Viajero Confiable program. U.S. citizens are currently eligible to apply to both trusted traveler programs.

“Trusted Traveler programs are a vital tool to facilitate international travel and trade,” said Jeh Johnson, Secretary of Homeland Security. “I am pleased to work together with Canada and Mexico to lay the groundwork for expedited arrival screening for pre-approved travelers from all three countries. We are committed to enhancing the travel experience through our risk-based approach to aviation security, and this expanded partnership will benefit travelers all across North America.”