Author: tancincowp

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Updates

USCIS Publishes Final Rule Amending I-9 Regulations

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On July 22, 2010, USCIS published in the Federal Register a final rule
that made minor changes to the rule related to electronic employment
eligibility verification. The final rule now states that employers and
recruiters/referrers who are required to complete and retain the I-9
Form may, for a fee, sign the form electronically and retain a digital
version of the form.

Additionally, the final rule clarifies that employers are required to
complete a new hire’s I-9 Form within three business days of hire (not
calendar days). The rule states that employers may use paper,
electronic systems or a combination of the two in their I-9 compliance
management. Additionally, employers are able to change electronic
storage systems, as long as those systems meet the requirements of
federal regulations. Employers do not, the rule states, need to
maintain an audit trail of each time an I-9 Form is viewed; instead,
they must maintain records of when the form was created, completed,
updated, modified, altered or corrected.

Categories
Updates

USCIS Publishes Proposed Fee Waiver Form

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Last week, USCIS proposed for the first time a standardized fee waiver
form that would provide relief for financially disadvantaged people
seeking immigration services from the federal agency. USCIS posted a
notice in the Federal Register and are currently seeking public
comments on proposed Form I-912, the Request for Individual Fee Waiver.

This proposed fee waiver form is based on information gathered in
meetings and collaborations with various stakeholders. The form will
provide a standardized way for applicants and petitioners to submit fee
waiver requests to USCIS by clearly delineating criteria for the waiver
to applicants; this will provide consistency to the process of
requesting a fee waiver.

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Global Pinoy

Recapturing Priority Dates in Family Visa Petitions

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Twenty-one years ago, William was petitioned by his US citizen brother.  This petition was filed when William’s child, Charlotte, was still a minor. Now Charlotte is 28 years old and while still single, she is still under the physical care and custody of her father. Charlotte had an accident a few years back and had been disabled since.

The National Visa Center of the US Department of State (DOS) sent William a letter informing him that the visa petition was filed in 1989 is now ready to be processed. He was asked to sign a Choice of Agent form to begin the process. William noticed that in the letter, only his wife Cecilia and him were listed as applicants for the visa. Charlotte was no longer included in the petition.

Prior to responding to the letter, William consulted with his brother’s counsel and he was told that Charlotte was no longer included in the petition because she aged out or turned twenty-one while the petition was pending. If William decides to obtain his immigrant visa and becomes a green card holder, he may then petition his only daughter Charlotte. Unlike other immigrant visa applicants, Charlotte may not be considered as a “derivative” beneficiary child because she is now an adult.

William believes that this is totally unfair for her child to be left behind. Charlotte was only seven years old when the petition was filed in 1989 and that it was the lengthy waiting period that caused her daughter to aged out. He heard that if he petitions Charlotte as an adult child, this petition will fall under a second family based category and it will take at least ten years before his child will be processed for the visa.

In his desire to finally migrate to the US where his siblings and parents live, William searched for solutions to his predicament. He still wants Charlotte to travel with him when he goes to the US. He heard about “recapturing” priority dates so that the adult child’s own petition may have the priority date of his parent’s original petition, which in this case is 1989.

Numerical Limitations

There are only certain numbers of immigrant visas available in a given year. The US Department of State (DOS) allocates only 226,000 visas, worldwide, every year under the family based preference category. Since there are more visa petitions than the number of visas allocated, severe backlog in processing of petitions are created.  The countries with the most visa applications backlogs are Mexico, China, Dominican Republic, India and the Philippines. As a system for processing the visas, the “priority dates” became reference point to determine which petition will be processed for a visa.

Priority date is the date the US citizen or green card holder files the petition with the US Citizenship and Immigration Service. When a petition is approved, the priority date is also indicated in the approval notice as the date of filing of the petition and not the date of approval. This rule applies to family petitions.

The priority dates for processing of visas are being monitored by the DOS, the agency that comes up with a monthly “visa bulletin.” This bulletin may be accessed from the DOS website at www.travel.state.gov. For the month of July 2010, and referring to the visa bulletin, the petitions filed in April 1989 by US citizens on behalf of their brothers or sisters are being processed. This means that the waiting time is more or less twenty years for this type of petition.

Priority Dates of Filipinos

A closer look at the visa bulletin will reveal that Philippines and Mexico are the countries with the most backlogs in visa petitions. Philippines fourth preference, which is the sibling petition, is the worse considering that the petitioned brother/sister will have to wait for two decades before a visa actually processed.

Interestingly, only for Filipino nationals, the petitions by green card holders for “adult unmarried” children under the second preference-b have advanced priority dates than petitions by US citizens also for their “adult unmarried” children under the first preference petition.  More Filipino immigrants applying for citizenship and filing petitions as US citizens caused this mind-boggling situation to happen. In an attempt to correct the apparent favorable treatment to green card holder petitioners over US citizen petitioners, legislation in 2002 called the Child Status Protection Act was passed allowing an option to stay in the second preference even if one becomes a US citizen. This is called the  “opt out” provision where a letter is sent to the US embassy indicating the desire to keep the petition under the second preference for a faster processing time.

Challenging the Priority Date Rule

When it takes several years for visas of adult children to be processed, the very core policy behind immigration, which is family unity, is subdued. This current state of chronic backlogs in family petitions is definitely distressing to many who want to join their families in the US. In one Board of Immigration Appeals case, Matter of Garcia,(BIA June 16, 2006) the government agreed that the priority date of the principal applicant in the fourth preference petition shall be recaptured by the petitioned child who aged out. This is not a precedent decision and is not followed as a general rule by the DOS. However, there is also the case of Matter of Wang (25 I&N Dec 28, BIA 2009) which is currently pending before the Court of Appeals, 9th Circuit, where petitioners are seeking court interpretation of the Child Status Protection Act that will actually recapture priority dates of the principal applicants like in the case of William.

The Matter of Wang case is still pending and we are all waiting for a favorable interpretation by the Court of Appeals. If the petitioners prevail in this case, then, more priority dates will be recaptured resulting in faster adjudication of children who aged out while their petition is pending. This remains to be seen.

(Tancinco may be reached at law@tancinco.com or at 02 887 7177)

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SideBar

Can I Be Forced To Pay Someone Else’s Debt?

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Yes and No.

In certain cases, yes, you can be forced to pay someone else’s debts. If your spouse, for example, obtains a necessity of life (food, clothing or medical care) and cannot pay for it, you can be forced to pay for your spouse’s debt.  Likewise, you can also be forced to pay for certain debts, such as medical care, for your minor child.     

If you act as guarantor or co-sign an obligation with a primary debtor, then yes, you will also be liable on that debt obligation you co-signed. It doesn’t matter that you were the best of friends when you co-signed the debt but now are no longer in good terms with the debtor. It doesn’t matter what your current relationship is with the primary debtor. The creditor can run after you and force you to pay the full balance of an obligation you co-sign with someone else.

A common situation for this would be the case of husbands and wives who co-sign a joint obligation, say, a credit card. If the spouses should divorce each other later on, each of them would still be fully liable on the credit card obligation. The fact that the wife was the only one who used the credit card; or, that the wife was the only one who signed the credit card authorization receipt, does not matter.  As far as the creditor is concerned, the husband can still be forced to pay the full balance of the obligation.

Likewise, in cases where you co-sign for a primary debtor and that primary debtor declares bankruptcy, you will still be liable for the full debt. In this situation, the debtor who declares bankruptcy may no longer be liable on that debt. The creditor can no longer collect or sue the primary debtor, however, you as the co-signer or guarantor still remains obligated to pay for that debt.  Thus, it is very important for you to be aware that when you co-sign an obligation, you may end up having to pay for someone else’s debt even though that someone else may no longer be obligated to pay for it.

Other than the situations mentioned above, no, you may not be forced to pay for someone else’s debts.  Generally, you cannot be liable for an obligation wherein you have not signed an agreement to do so. However, there may still be certain exceptions such as: taxes, court fines, and, child support, where you may be liable even if you have not signed that agreement to do so as these obligations are imposed by law.  
     
(DISCLAIMER: material presented above is intended for informational purposes only. It is not intended as professional advice and should not be construed as such. Rey Tancinco is a partner at Tancinco Law Offices, a professional corporation with offices in San Francisco, Vallejo, and Manila. The law office website is at: tancinco.weareph.com/old.  Rey Tancinco can be contacted at (800) 999-9096 or (415) 397-0808 or via email at: attyrey@tancinco.com
 

Categories
Global Pinoy

Victims of Crime Visas

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Julieta has a love child from a prior relationship with a married man.
After giving birth to her child named Julianne, she moved from her home province in Southern Mindanao to Manila. There, she met James, her future husband,  who is a US citizen.

In 2008, Julieta arrived in the US with a fiancé visa together with her minor child Julianne. Within 90 days of her arrival in the US, the couple married in a simple ceremony in Southern California. The first year of their marriage went well and they lived as a happy family. One day, Julieta heard her 3 year old daughter crying and the young child showed signs of sexual abuse. Julieta confronted her husband about this but he became very violent. James denied any wrongdoing and he began to physically abuse Julieta. He also started to force her to having sex with him.

 At the time the abuses happened, Julieta possessed only a conditional resident status. She was afraid to tell the authorities about the abuses for fear that she would be deported. Her decision to continue to stay with her husband drastically changed when she caught James assaulting her minor child. Instead of reporting the matter to the police, however, Julieta left the family home with Julianne and temporarily stayed in a friend’s house in San Francisco. After a few days, Julieta decided to depart back to Manila with her daughter.

 The case of Julieta may not be a common occurrence but there are many victims of crimes who are not knowledgeable about their rights and the protections available to them despite their immigration status.

Providing Protection to Victims

On July 15, 2010, the US Citizenship and Immigration Services (USCIS) announced that the agency approved 10,000 “U” visas. According to the USCIS press release, the approval of 10,000 is an important milestone for the government as it meets its goal of offering immigration protection to victims of crimes and strengthens law enforcement efforts to combat crimes. The announcement by the USCIS emphasizes also that it met its statutory limit of 10,000 U visas for the fiscal year. They will start issuing new U visas again beginning October 2010.

The “U” Visa

 The U visa was created with the enactment of the Victims of Trafficking and Violence Protection Act. The “U” nonimmigrant status provides immigration protection to crime victims who have suffered substantial mental or physical abuse as a result of a crime. The U visa allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of the criminal activity.

To qualify for a U visa, an immigrant must: (1) prove that she or he has suffered “substantial physical or mental abuse” as a result of one of the following forms of criminal activities: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, attempted perjury, conspiracy, or solicitation to commit any of the above mentioned crimes; (2) show that the victim possesses information concerning criminal activity; and (3) provide certification from a federal, state or local law enforcement official, prosecutor or judge which states that the U-visa applicant is being, has been or is likely to be helpful to the investigation or prosecution of the criminal activity.  

Compromising Victim’s Safety

Most victims of crimes are afraid of retaliation by the perpetrators. One of the requirements for an immigrant victim to obtain the nonimmigrant visa to stay in the US is that the victim be able to show evidence of cooperation with a federal, state or local law enforcement office in the prosecution of the criminal activity.

For many victims of crime, taking the initiative to contact law enforcement officers is a very risky step.  There are those who feel that their safety is not guaranteed if they continue to reside in the US. Just like in the case of Julieta, many victims may feel that evading the perpetrator of the crime in order to avoid getting hurt is an easier route to take than to assist in the perpetrator’s prosecution.

Several outreach efforts are undertaken by non-profit organizations and government agencies to disseminate information about the existence of protection programs for victims of crimes. Unfortunately, not all government officials are aware of the protocol in the implementation of this U visa program. Thus, continuing training and information dissemination is needed.

Authority to Revoke Visa

Once a “U” visa is issued, the US Citizenship and Immigration Services may still have the authority to revoke the visa. One of the grounds for the revocation of the visa is that the victim refuses to continue cooperating with law enforcement authorities in the prosecution of the criminal activity. Similar to cases where employment authorizations are initially issued to those who cooperate in the prosecution of crimes, immigration benefits may also be revoked if the victim has not continued to be cooperative or helpful.

Among the 10,000 “U” visas issued, the number of Filipinos may not be significant. Fear of retaliation, and probable deportation, are major concerns that prevents them from applying for this type of visa.  The law indeed has a dual purpose to both protect the victim as well as to prosecute the criminal activity. For many, however, running away and thinking of their safety is more paramount than their continued presence in the US.

(Tancinco may be reached at law@tancinco.com or at (02)887 7177)

Categories
Updates

USCIS Announces the Approval of 10,000 U Visas in Fiscal Year 2010

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USCIS announced this week that it has approved 10,000 petitions for the
U Visa in Fiscal Year 2010, marking the first time that the federal
agency has reached the statutory maximum for that visa category. The U
Visa was created in the Victims of Trafficking and Violence Protection
act, which was legislation aimed at strengthening law enforcement’s
ability to investigate and prosecute cases of domestic violence, sexual
assault, human trafficking and other crimes, while providing protection
to the victims of those crimes.

“Through the U visa, USCIS is able to provide crime victims with
critical immigration protection, allowing law enforcement officials to
protect victims and bring the perpetrators of crimes to justice,” said
Alejandro Mayorkas, Director, USCIS. “Through our partnership with both
law enforcement and service providers, and through the dedicated work
of our staff, we were able to reach – and provide this vital benefit to
– thousands of deserving individuals.”

USCIS will again issue U Visas on October 1, 2010, the first day of the
next fiscal year. Until that time, USCIS will accept petitions for the
U visa; conditionally approved petitioners will be placed on a waiting
list.

Categories
Updates

USCIS Extends Temporary Protected Status Registration Period for Haitian Nationals

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This week, USCIS announced that they will extend the registration
period for Temporary Protected Status (TPS) for all eligible Haitian
nationals. The initial period for TPS registration for Haitian
nationals was from January 21, 2010 through July 20, 2010. This period
has now been extended through January 18, 2011.

The Department of Homeland Security had previously published a notice
in January 2010 that announced TPS designation for Haiti for an 18
month period. This TPS designation only applies to Haitian nationals
who have continually resided in the U.S. since January 12, 2010 and not
to those who first entered the U.S. after that date.

Categories
Immigration Round Table

Victim of Illegal Recruitment Charged with Misrepresentation

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Dear Atty. Lou,

On April 29, 
2009, my brother and I were granted
  H2B visas to work for a US company somewhere in Missouri. After receiving our approvals and our interview at the US Embassy, I purchased a non-refundable plane tickets. Unfortunately, we were called 
back to the embassy a few days prior to leaving. We were 
questioned by the fraud department at the US Embassy. We did not know
 anything, but apparently the US employer was not honest, and not
 treating workers properly.

We did not know why we were being questioned and were told by our
 agencies in the Philippines and USA that it was a minor problem with a
 contract. We were told that the US employer had just submitted 
the wrong contracts and their lawyers would be contacting the US 
Embassy to straighten out the problem. We were sent new contracts to
 present at the US Embassy fraud office in Manila. We then had our visas revoked and lost out on the chance to work in 
the USA, and lost on the money we had spent on the agencies, US 
Embassy fees and plane tickets. I think the US government took care of
 the Filipino workers that were already in the US and assigned them to legitimate employers. However, my brother and I were about to
 leave to the US, and were unfairly punished. Not only did I lose the visa, job, 
and money, but it appears that I was also accused of misrepresenting

When I went before the US Embassy at a later date with a job offer from a
 real employer I was denied as misrepresenting.
 I am a hard-working young lady only 22 years old now and I just want a chance to
 work for an honest hotel in the US. It is not our fault that the US employer was corrupt. Please help us to clear our names at the US Embassy and get the H2B visas. I know of an honest agency and employer now that would treat me properly. Thank you for
 your help.


MB

Dear MB,

I understand that you were not responsible for the unfortunate incident regarding the revocation of your visas. From the point of view of the US Embassy, they have no basis to determine whether you were aware of the misrepresentations that the US employer/petitioner made in regards to your application for H2B working visas.

Section 212 (a)(6)(C) of the Immigration and Nationality Act provides that an alien who by fraud or willfully misrepresenting a material fact, seeks to procure or has sought to procure or has procured a visa, other documentation or entry into the US or other benefit provided under that Act is inadmissible or barred from receiving a visa.

The information you have provided indicates that the eight owners of the US petitioner’s company were indicted on RICO (Racketeer Influenced and Corrupt Organizations Act) related to labor racketeering, forced labor trafficking and other immigration violations.

Misrepresentation as a ground for the denial of the visa must be material and must be made willingly and knowingly. The consular officer may not assume that you are not a conspirator to the misrepresentation. The fact that they have seriously indicted the owners of the US company of federal law violations does not automatically mean that you are not a party to the illegal scheme. Hence, if you are found to have “misrepresented” a material fact to the US Embassy, it is your burden to overcome this finding by showing that you are innocent of this misrepresentation.

You may prove your innocence to the consular officer when you have a subsequent opportunity to apply for another working visa through a new employer. If this petition is approved and you re-apply for the working visa at the US Embassy, you should bring proof that you did not participate in the misrepresentation of your prior petitioner and that you are a victim of this unlawful recruitment. Your proof must be satisfactory which must include not just your written testimony but also objective evidence. If you are able to convince the consular officer that you were a victim of illegal recruitment and innocent of the misrepresentation charges, then you may be issued nonimmigrant visas as long as you prove other eligibility requirements. Good luck!

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com

Categories
Updates

USCIS Posts Notice Clarifying Three-Day Rule for Employee Eligibility Verification for New Hires

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USCIS recently reminded U.S. employers that they have just three days
after their new employees’ dates of hire to open a case in E-Verify. In
addition, this rule also applies to the completion of essential
portions of the I-9 form. Section 2 of the I-9 form should also be
completed within this time period. It should be noted, for
clarification, that the three-day period is, in fact, four total days,
as stated in a USCIS posting. For example, if an employee is hired on a
Monday, these deadlines must be reached by the Thursday of that same
week. The date of hire (in this case, Monday) is not counted in the
three-day period.

However, there has been some question as to whether ICE will interpret
the three-day rule in the same way that USCIS has stated. While ICE has
informed the public that they will honor the USCIS interpretation of
the three-day rule (the fourth day after a hire), ICE has not published
any official notice stating this understanding and has, instead, only
forwarded the USCIS posting to their field agents.