Author: tancincowp

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USCIS Extends Temporary Relief for Those Affected by Typhoon Soudelor

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Typhoon Soudelor caused extensive damage in the Commonwealth of the Northern Mariana Islands on August 2. USCIS wishes to remind affected individuals that certain U.S. immigration benefits or relief may be available to them. Because a natural disaster can direly affect a person’s ability to maintain lawful immigration status or get other immigration benefits, USCIS had previously adopted temporary relief measures to help individuals affected by the typhoon through September 2, 2015. USCIS is not extending those temporary relief measures an additional 60 days through November 2, 2015.

Eligible individuals may request or apply for temporary relief measures, which include a change or extension of nonimmigrant status, extension or re-parole of a person previously granted parole by USCIS, expedited adjudication of employment authorization applications and assistance to lawful permanent residents stranded overseas without immigration or travel documents.

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Global Pinoy

Penalty for Sham Marriages

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Entering into sham marriage for the purpose of circumventing immigration law carries with it severe penalties. What happens in the case where the U.S. Citizenship and Immigration Services’ (USCIS) finding of marriage fraud is based on erroneous facts? Is there a way to challenge the fraud?

In 1995, Tony entered the United State on a visitor visa and while on a business meeting he was introduced to Estela, a U.S. citizen. After two months in the United States and before the expiration of Tony’s visa, he was offered by Estela to marry her ‘for convenience’ so Tony could obtain his green card. In his desire to obtain a permanent resident status, Tony married Estela, who then filed a petition for him.

While the visa petition was still pending with the USCIS, Estela started to have romantic feelings towards Tony and wanted to make the relationship real. Hence, they cohabited as husband and wife for a few months prior to their interview.  During the interview, the immigration officer had doubts about the relationship of the couple. The petition was eventually denied because, after investigation by USCIS, Tony was found to have engaged in marriage fraud and was also having an affair with his co-worker while married to Estela. Estela was heartbroken after learning of Tony’s infidelity and to get back at him she withdrew the petition and filed for divorce.  In addition, Estela submitted an affidavit to the USCIS that her marriage to Tony was only a marriage for convenience.

Tony voluntarily departed the United States in 2010. After 5 years in the Philippines, he got married again to another U.S. citizen. This time it is a real good faith marriage. Will the petition filed on behalf of Tony by the new spouse be approved?

Penalty For Fraud

Aside from a possible criminal prosecution, if there is a finding of marriage fraud in visa petitions, Section 204(c) of the Immigration and Nationality Act prohibits the approval of future petitions for the individual who entered into sham marriages. So even if the subsequent marriage to a U.S. citizen is a good faith marriage, the law clearly bars the individual applicant from receiving any future U.S. visa.

The USCIS must have on the immigration record of the individual  “substantial and probative” evidence of the marriage fraud. The record must contain sworn statements and supporting documentation that directly leads to the finding of fraud.

Challenging the Marriage Fraud Finding

Considering its severe consequence, an individual with a marriage fraud finding may contest it through a subsequent visa petition as long as there are additional evidence of the bona fides of the alleged fraudulent marriage. In the case of Tony, he may submit another affidavit by the initial petitioner that the statement previously submitted was given out of spite because of their hurtful break-up.

Challenging a previous finding of marriage fraud is not easy as the applicant has the burden of proof to show the error of the previous finding.  Considering the harsh consequences of a finding of marriage fraud, it is best to avoid entering into such sham marriages in the first place.

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

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Department of Homeland Security Designates Yemen for TPS

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The Department of Homeland Security has announced that it is designating Yemen for Temporary Protected Status (TPS) for 18 months due to ongoing armed conflict in Yemen. The Middle East country is currently experiencing widespread conflict and, as a result, a severe humanitarian emergency. Requiring Yemeni nationals who are currently in the U.S. to return to Yemen would pose a major threat to their personal safety.

TPS designation for Yemen is effective September 3, 2015, and will be in effect until March 3, 2017. During this period of time, eligible nationals of Yemen who are approved for TPS will not be removed from the U.S. and may receive an Employment Authorization Document. This 180-day TPS registration period starts on September 3 and will remain in effect until March 1, 2016.

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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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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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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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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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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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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.