Author: tancincowp

As if the misery of losing a loved one is not enough grief for an immigrant spouse married to a US citizen, additional penalty awaits the widow. There is a real possibility of deportation if the petition filed is still pending upon death of the US citizen spouse. This is currently the harsh and controversial rule of the US Immigration Service relating to spouses who have been married for less than two years at the time the US citizen dies.

Carmelita was separated from her high school sweetheart for a long time. After separation, she never heard from Peter and she never got married. Using her tourist visa, she visited her relatives in San Jose CA last summer. During one of the gatherings in a private home, she was surprised to see Peter. At that time Peter was still married to Martha. When Carmelita and Peter met again after more than thirty years, the old flame was ignited and they fell in love again.

Peter filed a divorce to dissolve his marriage to Martha. In the meantime, Peter and Carmelita started living together and after about a year, the divorce was finalized. Peter married Carmelita in a simple church ceremony in January 2008. Thereafter, Peter filed a petition for Carmelita with the Immigration Service so that Carmelita may become a greencard holder. In December 2008, Peter died of a tragic car accident.

Carmelita?s petition was still pending at the time of Peter?s death. When Carmelita was called for an interview in February 2009, she was told that her petition will be denied because of the death of the petitioner. She was told that she could not self-petition herself because their marriage was less than two years old. Two weeks after her interview, Carmelita received a Notice of Hearing for her deportation back to Manila.

Still grieving from the loss of her husband, Carmelita is now faced with deportation.

The Two Year Rule

Generally, to obtain a green card, self petitioning by US widow(er) is allowed if the marriage was more than two years at the time of the death of the US citizen spouse. If the marriage was less than two years, then the self-petition may not be filed. Also, if the petition is pending at the time of the death of the petitioner, the petition will be denied.

In the case of Freeman v. Gonzales (9th Circuit 2006), the court ruled that if the US citizen spouse died while the petition was pending, the petition could still be approved after the US citizen?s death. Because of this ruling, many widows filed for reconsideration of their previously denied petitions.

USCIS Guidance Restrictive

Although the US Court of Appeals for the Ninth District ruled in favor of the widows, the US Citizenship and Immigration Service released a guidance instructing immigration officers on how to deal with the widow petitions. Additional requirements were imposed. The guidance states that the widow petitions may only be approved if there is a ?qualified sponsor? who will execute an affidavit of support on behalf of the widows. The substitute sponsor may be the spouse, parent, mother-in-law, father-in-law, sibling, child (at last 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild of a sponsored alien or a legal guardian of a sponsored alien.

Aside from imposing the requirement of a qualified sponsor, the USCIS also required a showing of ?humanitarian reasons? to reinstate the denied petition, as well as requiring that there must already be an adjustment application with the Immigration Service that is on file. This effectively prevents the filing of applications by widows who are outside the US.

With the restrictive guidance from the USCIS, a group called the Surviving Spouses Against Deportation was formed in the US advocating for the rights of the widow to obtain legal status in the US and to stop the widow penalty. Several cases were filed against the US Department of Homeland Security in US courts questioning the validity and harshness of this restrictive guidance.

Petition Should Not Die With the Petitioner

In California and other states of the Ninth Circuit District, the affected widows filed a lawsuit with the US District Court demanding an end to the ?widow penalty?. The case filed is the Hootkins v. Chertoff and is still pending. This week the court has authorized that this lawsuit be filed as a class action to affect those who are similarly situated in the Ninth Circuit. The Ninth Circuit only covers residents of Alaska, Arizona, California Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon and Washington. The hearing on this case is set for April 20, 2009. This only refers to the case of Hootkins but there are other cases that are filed outside of the Ninth Circuit that also questions the widow penalty.

The loss of a love one should not be exacerbated with an order of deportation. Most of the widows feel that they are being punished for the death of their spouses. If the immigration law is interpreted favorably without the restrictive provisions of the USCIS, death of the petitioner should not automatically cause the spouse to lose resident status. Their status as immediate relative of a US citizen should remain the same especially if the US citizen spouse is able to file all the necessary forms. Fairness dictates that the fate of the widow should not be buried with the deceased spouse.

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

Josephine is in senior high school at a prestigious school in Northern California. . Josephine had always excelled in her academics Aside from being smart, she also is popular because she is very attractive .She was born in the Philippines but her parents brought her to the United States when she was just seven years old

When Josephine turned 16 years old, she did not apply for a driver?s license because her parents told her to wait until she turned 18 years old. Now that she turned 18 years old and is a senior high school student, she still could not get her driver?s license as she was informed by her mother that she had no legal documents to support her application for a driver?s license. Josephine is one of the few, among her peers, who do not drive a car.

A few weeks back, representatives from different colleges went to her school to make presentations and to distribute applications forms. Josephine was not able to accomplish most applications because she does not have a social security number and the questions always asks if she is a US citizen or a permanent resident. Since she is undocumented, she has no legal immigration status neither will she be able to get a social security number.

Josephine is now confused and feels depressed. She feels so isolated and helpless. Her parents have no effective way to legalize their stay and in fact are now in deportation/removal proceedings. What are Josephine?s legal options?

Inadmissible at Entry

There are an estimated 12 million undocumented foreign nationals in the US. Most of these undocumented entered the US with a valid visa and then later allowed their visas to expire until they become ?tago ng tago? or ?TNT?s. Some entered with fraudulent documents or even fake identifications and are now facing adverse immigration consequences for their actions. Since immigration policy has been very restrictive, most of those who entered fraudulently or engaged in misrepresentation are having difficulty obtaining waivers resulting in them being deported or denied applications for immigrant visas.

For those who entered the US with their children, the inability of the parents to legalize their stay while their children were growing up has resulted in serious problems. Even without legal immigration status, children are generally able to enroll for elementary and secondary education. However, they will have a hard time enrolling in College because these schools now require proof of immigration status. These students are also not eligible for federal financial aid. Since the cost of tuition for college is expensive, many undocumented students forego the opportunity of going for higher education.

Student Visa

The legal way of sending one?s children to school to the US is to obtain a student visa. Children of non citizens or non immigrants may obtain the F1 student visa from the US consular office at the US embassy.

Parents who failed to legalize in the US, should understand that while they have not found it difficult to enroll their children in elementary and secondary education, applying for college education is different. It will always be advisable to go to the proper route in applying for a student visa.

To obtain an F-1 visa from a U.S. consulate, the applicant must complete and submit State Department Forms DS-156 and DS-158. Male applicants between the ages of 16 and 45 will also have to complete and submit Form DS-157.

Prospective student must inquire into the US schools, apply and ask for the Form I-20 to be submitted together with the student visa application. The US school will issue an I-20 pursuant to SEVIS program. (SEVIS is the Student and Exchange Visitor Information System, brought about after it was learned that some of the September 11 hijackers were lawfully in the United States in student status). The form I-20 means that the school qualified the applicant?s ability to study and is willing to accept the applicant as a foreign student. There are a few who apply for student visa through a change of status in the US.

California Law on Undocumented

There are at least a few states that are sympathetic to undocumented college students. One of these is the State of California whose legislature enacted AB 540. Under this California law even undocumented students may apply for ?in state? tuition fees as long as the undocumented student attended a US high school for more than three years. A student who pays ?in state? tuition fee will be able to save on tuition costs compared to foreign student or out-of- state students. This law was enacted many years ago but up to this time, it has been contested in court as being discriminatory and favoring illegal immigrants over out-of-state residents who study higher education in California. The constitutionality of this Law is being litigated and will be heard by the California Supreme Court anytime soon.

Losing Out on Many Opportunities

Most of the immigrants come to the US for economic reasons. Some hold the view that if only they are afforded better opportunities in their home country they would rather not immigrate. Others say that they migrate to build a better future for their children.

Whatever the reason is for migrating, the children?s welfare should always be foremost. If indeed, the best interest of the children is the primary reason and motivation for migrating into an adoptive land, then parents should not allow their children to fall into the cracks. Proactive steps should be taken to examine all their legal options and to make sure that their children do not miss out on many opportunities, specially on education, when they grow up. The young students who find themselves limited in their educational opportunities and who are isolated from their peers do not deserve to be in that situation. These kids had no hand in deciding for themselves when they were young. The parents who made the decision for them should be responsible enough to ensure that their welfare and interests are best served. This is done by choosing a legal path such that the stay in the adoptive country is legal, or, otherwise migrates to a country where their children?s future is not compromised.

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

Magdaleno Duenas, a Filipino veteran saved 10 Americans from captivity in a prison camp during World War II. He was able to immigrate to the US in 1992 and became a naturalized US citizen. Beginning in 1993, he looked forward to having the Equity Bill passed in Congress to attain his full recognition. After many years of waiting in the US, he unfortunately passed away in 2005. More and more aging veterans die each week and this greatest generation is slowly diminishing in number.

Sixty three years after passage of the 1946 Rescission Act declassifying the services of Filipino World War II veterans, the US Congress finally just passed a bill recognizing our Filipino veterans and providing a lump sum grant of $198 million.

In an economic crisis, receiving $198 million appropriation for the Filipino World War II veterans is definitely a momentous outcome after many years of struggle for recognition. The Filipino veterans and their supporters emerged victorious last week when both House and the Senate approved HR 1, the American Recovery and Reinvestment Act of 2009, or the economic stimulus bill.

Spending Authorization Lacking in 2008

This provision is not new as it was previously included in the spending bill signed by President Bush in September 2008. The $198 million was appropriated last year but there was no authorization for spending. The Senate through the office of Senator Daniel Inouye drafted the provisions for its authorization and included it in this year?s stimulus bill.

Last year?s Congress first introduced this lump sum of $198 million for veterans through the leadership of Congressman Bob Filner. This bill, called the Filipino Veterans Equity Compensation Fund (HR 6897), was approved after the provision on Filipino Veterans was withdrawn from the Veterans benefit enhancement bill (SB 1315) during Senate deliberation. The latter bill would have contained more benefits and a higher budget allocation as it attempted to recognize Filipino veteran residing in the US as having the same rights and benefits as their US counterpart.

Collective Efforts by Advocates

The $198 million budget for the Filipino WWII veterans did not come in a silver platter. This was brought about by years of campaigning, hard work and the collective effort of advocates who believed in the cause of the Filipino World War II veterans. The partnerships and networks created by the community with the legislative offices, and, the collaboration of efforts are commendable. Though each group or individual advocates may hold different views, there is a determination on most to address the inequity created by the provision of the Rescission Act of 1946. Senator Daniel Inouye, Senator Daniel Akaka, Rep. Mike Honda, Rep. Bob Filner and Speaker Nancy Pelosi have been a few of the strong advocates for the Filipino WWII veterans cause and were instrumental in having this $198million included in the stimulus bill.

A Qualified Victory

The classification of the services of the Filipino WWII veteran that was changed in the 1946 Rescission Act as not services for purposes of US veterans benefit was amended after 63 years. This time, our Filipino WWII veterans? services are fully recognized as active military service for purposes of the benefits but only to ?the extent provided by law.? This is the qualification that makes a difference if our Filipino veterans are to be fully recognized. Their full recognition is valued to the extent of $198 million and limited to those who are fortunate to live to this day and still able to enjoy the benefits of this bill.

This bill addresses certain veterans? needs but did not really address the true meaning of equity. For those who stand to benefit, this is long overdue. However, the bill contains provisions that are troubling. One is the ?release? provision. It prohibits further claims from the US government in view of the receipt of this lump sum money. While we cannot validly state that this is the pension that they long deserve, the lump sum to be received is like a settlement claim or damages for the historical error. This is not the concept behind equity. It is about correcting the injustice and treating our veterans equally with justice and fairness for services they have rendered in the same way as their US veteran counterparts.

The $198 million budget is fully authorized to be disbursed by the Secretary of Veterans Affairs. Filipino veterans who are US citizens will receive $15,000 and non US citizen veterans residing in the Philippines will receive $9,000. There is a window of one year to apply for the compensation benefits; and, surviving spouses will benefit only if their veteran spouse are able to apply within the one year period. The Secretary of Veterans Administration must promptly execute the provision of this Compensation benefit. In the meantime, the US Veterans Affairs (USVA) through the US Embassy in Manila has released procedures on how to file a claim for our veterans who are residing in the Philippines. For those Filipino veterans who are in the US, we are still awaiting for regulations from the USVA.

After President Obama signed the bill on February 17, 2009, many Filipino veteran advocate groups celebrated the victory. But is there really a reason for a high five when this lump sum legislation gives no benefit whatsoever to Filipino veterans who fought years to gain recognition but did not outlive the passage of this bill? Neither does this lump sum provide any benefit to widows or the surviving family members of these Filipino veterans. Nor will there be any benefits for veterans who are now living but may not survive the next few weeks (or months) while the USVA is still to come out with regulations on how to apply for this lump sum.

In the meantime, we savor this bittersweet victory with reservation.

(Atty Lou Tancinco is currently chair of the Veterans Equity Center, a San Francisco based non profit organization. She may be reached at 02 887 7177 or at law @tancinco.com)