Author: tancincowp

After paying substantial sums of money for the opportunity to work in the United States, hundreds of workers claim to have been victims of human trafficking. If the immigration status of the worker who claims to be a victim of human trafficking has already expired, is there relief for such victim? May he legalize his stay?  

Kevin was an overseas Filipino worker (OFW) who worked in Qatar as a bartender for a private company. He worked there for five years. When his contract ended, he went back to his hometown whereupon he was invited by his brother to apply with “ABC Corp”, a recruitment company based in the Philippines for the placement of workers abroad. Kevin and his brother were charged by the agency 250,000 pesos, a huge amount which they did not have, so they decided to mortgage their farm in order to pay the recruiter.  

The recruitment company thereafter instructed Kevin to go to the US Embassy to obtain his working visa. He was issued his H2B visa, together with his brother and three other Filipinos. They were made to understand that upon arrival in the States, they will be assigned to work for a hotel in Florida by an American based company, “US Opportunities”.

Kevin, his brother, and three other Filipino workers entered the United States in December 2009. Their recruiter said that they will enter through Detroit and will proceed to Maryland for their connecting flight to Florida. Upon their arrival in Detroit and contrary to the representation of their agent, no one met them at the airport. A friend of one of their companions picked them up instead. Kevin tried to call the number of the supposed representative of ABC Corporation in the United States, but he soon realized this was futile. Kevin tried to make the best of a bad situation by taking on odd jobs whenever and wherever he could and ended up working in Virginia as a handyman for various home projects without proper legal documentation. The hotel job that was promised him did not exist.

Kevin thereafter learned that some of those who were recruited filed a case against the US employer, one Michael Lombardi, and that this employer was convicted in 2012 of conspiracy to commit visa fraud.

Kevin has been out of status since he arrived in December 2009. What could be done in his case? Is he eligible for the T visa?

Human Trafficking

Human trafficking is modern day slavery. It is defined broadly to include not just sexual exploitation but also the recruitment, transportation, harboring or obtaining of a person for labor or services through the use of force, fraud or coercion for purpose of subjection to involuntary servitude, debt bondage or slavery.  When a victim pays a substantial recruitment fee for a job that does not provide the promised pay, or worse, for a job does not exist, a case of human trafficking exists. Victims usually find themselves in deep debt and mortgage family property to pay the recruiter for a job that pays far less than what was promised.
Thousands of men, women and children are trafficked each year in different countries including the United States. Most of the jobs where trafficking victims get assigned are primarily in agriculture, domestic services, janitorial services, hotel services, construction, health and elder care.  In recent years, even Filipino teachers who enter on professional working visas claim to have been the victims of human trafficking.

Relief for Trafficking Victims
When an individual finds himself without the promised job, he will soon fall out of status when the working visa expires. This can be very stressful especially when one is in an unfamiliar environment.  The U.S. Citizenship and Immigration Services may grant the “T” (Trafficking) Visa or “U” (Victim of Crime) Visa to those who can prove that they had been the victims of severe form of trafficking. If granted the T visa, a person will be allowed to stay in the United States for three years with work authorization. During this period, the victim must meet certain conditions: he must (1) maintain continuous physical presence in the United States; (2) remain in good moral character; (3) demonstrate that he will suffer extreme hardship involving unusual and severe harm if he is removed, and (4) cooperate with the authorities when his assistance is requested, in the prosecution of his oppressors.

Predicament of Kevin
When Kevin realized that he was illegally recruited and that there really was no job for him, he should have availed of the ”T” visa.  According to Kevin, he did not know anyone in the US at that time who could have helped him obtain the T visa. According to Kevin, he was afraid to approach the US Citizenship and Immigration Services because he might be ordered to leave the United States.

Even with U.S. law granting relief to victims of human trafficking, there are still many Filipinos who are in the same position as Kevin. Approaching the legal authorities is always a challenge because of the fear of being deported. There are different federal agencies, non-profit organizations and private individuals who assist victims of trafficking. But as it is with most victims, approaching the authorities or organizations who may be willing to help may also be hindered by cultural or language barriers. It is important that those involved in identifying and assisting victims of human trafficking understand the various causes that hinder victims from seeking the help they need and implement protocols that specifically deal with these issues in order to eradicate such obstacles. Only then can we empower, and therefore truly address, the plight of the victims of human trafficking.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at (02)721 1963 or visit her website at tancinco.weareph.com/old)

Amy sits at the witness stand anxiously waiting for the Immigration Judge’s decision on her case. She applied and obtained a visitor (B2) visa in 1997 using falsified documents. Thereafter, Amy married a United States citizen and a petition was filed on her behalf. Instead of an approval of her green card, she was put in removal/deportation proceedings for submitting falsified documents to the U.S. consular officer.

Amy now has two young children and risks being separated from them. The backlog of cases pending with the Immigration Court meant that Amy had to wait five years before she finally came to court for the individual hearing to plead her case. She is suffering from clinical depression and has been taking prescribed medications. At the hearing, Amy testified that she regretted her actions and swore never to lie in any applications in the future.

The Immigration Judge heard several other witnesses and read hundreds of pages of documents submitted to support the Waiver application of Amy. Finally, an oral decision was ready to be rendered. Amy listened attentively. The immigration judge scolded her lengthily and said that it is this type of conduct that makes it difficult for Filipinos to obtain visitor visas. Amy’s action cast a negative perception on other individuals similarly situated and make consular officers view future applicants more suspiciously. Amy’s application was nevertheless approved because of the equities she presented and the convincing proof of extreme hardship to her U.S. citizen spouse and minor children. But the immigration judge’s ‘lecture’ on the effect of misrepresentation cannot be minimized. Such actions do have significant impact on how visa applications are being adjudicated by consular officers these days. Aside from outright misrepresentation, however, there are other negative factors that result in the denial of B2 visa applications.

Intending Immigrant

A visitor visa applicant must prove the” temporary” nature of the trip before the consular officer may issue the visa. When a visa applicant is denied, a piece of paper is handed to the applicant and more often than not, the box “214B” intending immigrant has a check mark on it. This simply means that the applicant has not proven his eligibility, i.e. that the purpose of the travel is only ‘temporary’ in nature.

What is 214(b)? This is the section of the law which provides that every non immigrant visa applicant, with a few exceptions, are presumed to be “an immigrant until he or she establishes to the satisfaction of the consular officer, at the time of application for a visa … that he is entitled to a nonimmigrant status under section 101(a)(15).” Section 101(a)(15)(B) states that a nonimmigrant visitor is an alien “having a residence in a foreign country which he [or she] has no intention of abandoning and who is visiting the United States temporarily for business or temporarily for pleasure.”  The burden is on the applicant to overcome the immigrant presumption.

Even prior to the applicant appearing for the interview, the consular officer already has a predisposition on the case if negative factors are present on an individual’s visa application form. These negative factors include: (1) age; (2) length of time in a job; (3) previous time spent in the United States; (4) immigration petition; (5) other travels; (6) having relatives in the United States; or (7) inadequate funds to support the temporary stay in the United States. These factors may be overcome by a sufficient proof of temporary trip abroad and worthwhile reason for traveling like medical treatment, attending to inheritance, participating in a competition, attending burial of immediate relatives.

Relatives in the United States

Oftentimes, having immediate relatives in the United States is a reason for a visa denial. The presumption is that the presence of relatives makes it easier for the applicant to reside permanently in the United States.  When the consular officer finds in the application form that the relative is a green card holder or is already in valid immigrant status, there is a possibility of asking how this relative obtained their visas. If there was a change of status from visitor’s visa to another nonimmigrant visa, this will also be a negative factor to the consular officer and will result in denial.

An individual who was petitioned by a U.S. citizen or green card holder relative and is waiting for a priority date to be current is usually hesitant to apply for a visitor visa. There are cases where the reason for denial is the existence of a pending visa petition. It must be noted that there is a written policy for consular officers, contained in the Foreign Affairs Manual, that an applicant with pending petition should not be denied a visitor visa. The denial shall be justified only if there is reason to believe that the applicant’s true intent is to remain in the United States until such time as the immigrant visa becomes available.
Financial Ability to Support Travel

Usually young applicants with no stable job are denied the visas because of their inability to support travel. Unless these young immigrants can show sufficient assets and strong ties to the Philippines, the visa application will be denied.

One often hears about denials of visa for applicants who own real estate in the United States. This should indicate a strong ability to finance the travel since these individuals are stable. On the contrary, however, the consular officer may instead view the possession of a real estate as increasing the likelihood that this applicant will overstay in the United States.

The existence or non-existence of assets in the U.S., existence or non-existence of pending petitions, etc., are double edged swords which may be boon or bane for the visa applicant. This is why Amy’s earlier conduct on consular officers’ perception can have great impact on the denial or approval of future visitor visa applications.
It is at the interview that the applicant for the visa is provided an opportunity to overcome the immigrant presumption and prove that the intended trip is temporary. Denials may be avoided by being prepared for the interview and being very specific in articulating one’s “temporary” purpose in obtaining the visa. It is important to remember, therefore, that the four or five minute interview is your one opportunity to show that you do not present an “overstay” profile and debunk any preconceived notion that you will violate the proscriptions of your visa.

(Atty. Lourdes Santos Tancinco may be reached at law@tancinco.com or at (02)721 1963 or visit her website at tancinco.weareph.com/old)