Author: tancincowp

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Global Pinoy

68 Years of Injustice and Still Counting

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It has been 68 years. 68 years since the Rescission Act of 1946 has been enacted. 68 years since thousands of Filipino World War II veterans have lived under a pall of injustice, and who to this day, have not received their promised due. 68 years of ongoing hardship and despite concerted action to correct the unjust treatment, most efforts have remained futile except for a few provisions adjusting some benefits. Despite the corrective amendments made subsequent, the harsh effect of the Rescission Act is still experienced by many veterans to this day.

George is a Filipino World War II veteran who is currently residing in California. He has a service-connected disability and is one of the few veterans who is receiving compensation from the U.S. Veterans Affairs office. In January 2014, he received a letter from the V.A. notifying him of its intention to reduce his benefits down to 50% of what he is currently receiving. What will be the reason for the reduction of this benefit? What steps should he take to ensure his compensation benefit is not reduced?

The 1946 Rescission Act

More than 250,000 Filipinos were conscripted to join the U.S. Armed Forces of the Far East during World War II. After the war, President Truman signed the Supplemental Surplus Appropriation Rescission Act and the Second Surplus Appropriation Rescission Act. These pieces of legislation are commonly known as the Rescission Act of 1946 and contain provisions that stripped our Filipino veterans of their well-deserved veterans benefits.

Under this law, the Filipino World War II veterans, the New Philippine Scouts, recognized Guerilla Units and all those who served under the command of the United States Armed Forces in the Far East (USAFFE) were denied eligibility for most veterans benefits including all non-service connected U.S. veteran benefits. It reduced by 50 percent the service-connected benefits that these targeted individuals may receive relative to their American counterparts. The specific Filipino veterans provision of the 1946 Rescission Act is codified in 38 United States Code Section 107(a). The denial of military benefits to Filipino veterans is a result of this 1946 enactment. To correct this iniquitous treatment and injustice to the veterans, legislation that outrightly repeals the 1946 Rescission Act needs to be passed by the U.S. Congress.

Amendment to Correct Injustice

For many years, Filipino American advocates in the United States attempted to correct the harsh effects of the Rescission Act. Several piecemeal legislation had been passed that provided some relief to some veterans but none that justly or completely addressed the veterans’ plight.

In 1999, the Filipino Veterans Improvement Act (P.L. 106-377) was passed into law that restored the 50% service-connected benefits back to 100%, but only for veterans residing in the United States. In 2009, a decade later, President Obama enacted the Filipino Veterans Equity Compensation Act where veterans residing in the United States are to be granted a one time payment of $15,000 for those U.S. citizen veterans and $9,000 for non-US citizen veterans in the Philippines. The United States government has yet to fully restore the rights, privileges and benefits guaranteed to, but were taken away from, Filipino soldiers of WWII.

Under the current state and in the absence of true equity legislation, U.S. Veterans Affairs examiners have to reference the various laws, understand which benefits apply to which specific class of Filipino veterans, just to determine the measure of the benefits that are to be received in any given application.

The case of George exemplifies this problem. It is true that the 1946 Rescission Act limited his benefits to the 50% rate for compensation benefits for Filipino veterans, but because this was corrected in 1999 under the Filipino Veterans Improvement Act for the Filipino veterans residing in the United States, his benefit should not be reduced. At the present time, George’s case is to be heard by the Board of the Veterans Appeals so he may present evidence of his residence in the United States and argue that he should rightfully receive 100% of his disability benefit.

Family Reunification

Every effort undertaken for the benefit of the Filipino veterans may no longer be felt by thousands of them as the population dwindles due to age, sickness, or outright despair. A significant number of the elderly veterans in the United States are resigned to their plight but grab on to the one real hope that at least in the near future, their adult children can immigrate and join them in the United States.

A bill called the Filipino Veterans Family Reunification Act of 2013 sponsored by Senator Mazie Hirono (D-HI) and Rep. Colleen Hanabusa (D-HI1) will benefit descendants of the Filipino veterans. If this bill is passed into law, children of Filipino veterans may take advantage of the exemption from the numerical limitation set by the U.S. immigration quota system. This means that their petitions will all be processed outside the set quota and they need not wait for the priority dates to be current. This bill specifically mentions that it will apply even if the Filipino veteran is no longer living, as long as there is proof of the veteran’s naturalization as a U.S. citizen. Senator Hirono was able to tack this provision into the Comprehensive Immigration Reform bill which was passed by the Senate. Unfortunately, the House of Representatives has as yet to take active action in order to get the immigration reform bill passed.

The story of our Filipino veterans and their descendants had always been that of constant struggle. Countless Filipino Americans and their supporters are actively taking steps to try to correct the iniquities brought about by the Rescission Act 1946 and restore the rights of the Filipino veterans. But with the political and economic climate being what it is, it will be a long road ahead before Filipino veterans and their families could realize true justice. Hopefully, it will not take another 68 years.

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

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Updates

USCIS Publishes Updated H-2B Visa Numbers February 14, 2014

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On February 14, 2014, USCIS provided an update of the amount of
cap-subject H-2B visas received and approved by the federal agency for
the first and second halves of Fiscal Year 2014. According to USCIS, a
total of 30,687 beneficiaries have been approved for the first half of
Fiscal Year 2014, with an additional 4,453 petitions pending. 4,063
beneficiaries have yet been approved for the second half of Fiscal Year
2014; 6,656 petitions are pending.

Congressionally-based legislation limits the amount of H-2B visas
provided per fiscal year to a total of 66,000, with 33,000 allocated for
employment for the first half of the fiscal year and 33,000 allocated
for employment for the second half of the fiscal year. Unused numbers
from the first half of the fiscal year are made available for use by
employers seeking H-2B workers during the second half of the year.

Categories
Immigration Round Table

Assisted Reproductive Technology and U. S. Citizenship

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Egg or Sperm Donor Need Not be From US Citizen to Obtain US Citizenship

For most married couples, raising kids of their own is a given. Unfortunately, some couples have fertility problems. Thus, options like adoption or undergoing assisted reproductive technology (ART) are considered.  ART includes in vitro fertilization (transfer of fertilized human eggs into a woman’s uterus).  In vitro fertilization involves surgically removing eggs from a woman’s ovaries and combining them with a sperm in the laboratory, after which they are either returned to the woman’s body or implanted into another woman.
In the Philippines, surrogacy arrangements of any form are still considered invalid as being morally and religiously wrong. The same rule does not apply to other countries where surrogacy arrangements are recognized and regulated. While this surrogacy arrangement is considered void in the Philippines, there are some Filipino nationals who have the option of undergoing assisted reproduction technology in varying ways.

In an actual case, Maria who is of Filipino heritage and who is now a US citizen residing in California entered into a surrogacy arrangement with a woman in India. Maria’s egg cell was used together with the sperm of her US citizen husband. The fertilized egg was then implanted in the surrogate mother in India who carried the baby to term.  After the child was born, a U.S. passport was applied for at the U.S. Consulate in India and the child was issued a U.S passport.  The U.S. State Department clearly followed the rule that “the sperm or the egg donor must be a U.S. citizen in order to transmit U.S. citizenship to a child conceived through assisted reproductive technology.” The child’s application for U.S. passport was granted after a genetic link was proven to exist.  Sections 301 and 309 of the Immigration and Nationality Act regarding transmission of citizenship provides this rule. Hence, as in the case of Maria, even if the surrogate mother (woman from India who carried the child for nine months) is not a U.S. citizen, the child may still be considered as a U. S. citizen.

In a reverse situation where the fertilized egg is from a confidential donor and is implanted into the womb of a mother through ART, a problem will arise if the mother gives birth outside the US. Generally, a U.S. citizen mother who carries the fetus for 9 months expects the child who is born to be a U.S. citizen as well.  However, what about the situation where the egg or sperm donor (or both) is unknown (or kept confidential)?  Under the old rule, problems of citizenship may arise in these cases where the sperm or egg donor wishes to remain confidential or anonymous. In these cases, there will be no way to prove citizenship of the donor for purposes of transmitting citizenship to the child.

In a recent development released this month of February, the U.S. Department of State announced a major policy change to facilitate transmission of American citizenship to children born outside the United States using Assisted Reproductive Technology. There is no more requirement of a genetic link. According to the State Department, U.S. citizen mother can now pass on citizenship to children to whom they give birth regardless of whose egg or sperm was used for conception.

(Atty. Lourdes Santos Tancinco may be reached at 1 888 930 0808 or at law@tancinco.com or visit her website at tancinco.weareph.com/old)

Categories
Updates

New Report Shows Removal Order Success Rate Only 50 Percent

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According to a new report from TRAC, Immigration and Customs Enforcement
success rates in getting removal orders issued has shrunk to about 50
percent. This new rate is the lowest recorded since tracking of removal
order rates began over 20 years ago. Standard rates for the issuance of
removal orders after receiving DHS requests is between 70 and 80
percent. In 2009, deportation orders were issued for about 76 percent of
requests. The rate, started to fall in FY 2011 to 70 percent. By FY
2012, the rate was 62 percent and last year the rate dropped further to
just 52.9 percent.

Results for requests were different based on state. Success rates were
highest in Georgia and Louisiana; both states saw a more than 80 percent
success rate. Rates were lowest in New York and Oregon, where success
rates were less than 30 percent. View the full report with detailed
trend data online at: http://trac.syr.edu/imm/outcome_leave.

Categories
Global Pinoy

The Perils of Remarrying Your Ex-spouse

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After a divorce or annulment, it is not unusual that married couples sometimes reconcile and give their relationship a second chance by re-marrying. While remarriages of couples can be considered as good faith marriages, the U.S. Citizenship and Immigration Services may consider these remarriages as a derogatory fact in obtaining future immigrant visas.  In what specific context does this occur?

Sid was married to Lorna in 1987. They have two children from their union. The employer of Sid sent him to the United States for “training” on a program for their company.  When Sid arrived in the United States, he bumped into Anna who was his former classmate in high school.  During his short stay in the United States, Anna and Sid developed an intimate relationship. After a few months, Sid divorced Lorna in a California court. After the decree of divorce was issued, Sid and Anna married in Reno, Nevada.

Anna filed an immigrant visa petition for Sid and his two minor children with the U.S. Citizenship and Immigration Services.  Sid was eventually able to obtain his green card; while his children also got their visas and arrived in the US. A short time after he was granted the green card, Sid’s affection towards Anna changed drastically. He rarely slept at their conjugal home and had less communications with Anna. When confronted, Sid finally revealed his intention to leave Anna and began living with his two minor children separately. Anna was distressed by the situation and felt used by Sid. She thought that her relationship with Sid was genuine and in good faith but there was nothing that she could do.  Anna cried about her situation and fell into a severe depression.

After a few years, Sid applied for U.S. citizenship and was approved. He also divorced Anna and continued residing with his minor children in an apartment he rented near his place of employment.  Sid later decided to return briefly to the Philippines where he re-married his first spouse, Lorna.  As soon as he got re-married to Lorna, he filed an immigrant visa petition for her so that they could reside again as a family in the United States.  What will happen to the petition of Lorna? Will Sid prevail in his plans of reuniting his family?

Sham Marriage

In order to determine whether Sid’s petition for her first wife will be approved the USCIS will examine the nature Sid’s marriage to Anna as that marriage was the source of his green card and later citizenship status. Sid’s marriage to the U.S. citizen spouse must have been entered into in good faith and should not be a sham marriage.

Relevant case law defines a sham marriage as a marriage that was entered into for the primary purpose of circumventing immigration laws with no intent of establishing a life together. It is a marriage that was entered solely for the purpose of obtaining a green card. Hence, the key in finding whether a marriage is fraudulent or a sham marriage is determining the “intent” of the married couple at the time of the marriage. Did they have the intent of establishing a life together at the time of the marriage?

The burden of showing whether the marriage is real lies with the beneficiary or the party seeking the green card. It requires proving a “state of mind” coupled with objective evidence. In assessing the evidence, USCIS will examine documentation submitted such as shared residence, co-mingling of funds, proof that the beneficiary is listed on U.S. citizen’s spouse insurance policies, property leases, income tax forms, bank accounts, etc.

In this actual case of Sid, he should convince the USCIS that his marriage to Anna was in good faith and was with the intention of establishing a life together. However, his acts after issuance of his green card show a contrary intention. Though he may have shown a genuine intention initially, his subsequent actions indicates that his real intention was to reunite his first family in the United States. Unknown to Sid, Anna and her family wrote declarations and letters to the USCIS alleging that Sid “used” Anna just to obtain his green card and that their marriage was entered into fraudulently from the beginning. Detailed testimonies were submitted to prove the sham marriage. Hence, despite a prior finding of good faith marriage, the legal consequences of a fraudulent marriages will still have adverse effects against Sid and his future petitions.

Consequences of Marriage Fraud

If Sid was still a green card holder, his status will have been revoked after the USCIS determination of a fraudulent marriage. Now that he is a U.S. citizen, he may run the risk of having his U.S. citizenship revoked as it was based on fraud.  This will prevent him from filing future petitions for immigration benefits.

Aside from the civil consequence of marriage fraud, there is a possibility that criminal charges can be filed against him.  If convicted of marriage fraud, he faces a penalty of up to five years imprisonment or a fine of $250,000 or both.

Marriage in Good Faith

Marital relationships if not based on genuine “love” may be complicated. Those who have seen cases similar to that of Sid may argue that this cannot be a fraudulent marriage but simply a case of bad marriage. In the immigration context, proving a real marriage from a sham marriage is a matter of credibility and evidence. If indeed it was a bad marriage, then the consequences mentioned above may not be applicable.  Whether or not it is, depends on the facts of the case and the available evidence to defend one position or the other.

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

Categories
Immigration Round Table

Why Some Visitors Visas Are Being Cancelled

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Carlo was a holder of a ten year multiple visitor visa issued to him in 2010. Since its issuance, Carlo would visit her daughter Regina who is a student in a California university. This year, Regina is finally going to graduate and Carlo would like to be present during the ceremonies.

Unfortunately, last month, Carlo received a notice from the US Embassy Consular Section informing him that his visitor is already revoked. He is being asked to go to the US Embassy so they can physically revoke the visa. In this letter, he was also told that he may no longer use his visa even on its face it still has a validity period of five years. What happened to the visitor visa of Carlo? Why was it being recalled?

Power to Revoke

The Department of State through the consular officers is given authority to issue visas to foreign nationals. They are also afforded the discretion to revoke and cancel visas after they have been issued. The visa holder’s request for reconsideration of the revocation has been eliminated in 2011 regulations. It also allows the consular officer to revoke the visa without notice if it is “impracticable” to notify the visa holder. According to the Department of State regulation, “security concerns” was taken into account in justifying additional authority to consular officers.

Reasons for Revocation

There are statutory grounds that allow revocation of an already issued visas. The consular officer is mandated to exercise this power only within the bounds of the statutory provisions of applicable law.  Nevertheless, it appears from the reading of the rules that consular officers have wide discretion to exercise this power.

When a consular officer receives derogatory information that renders the visa holder ineligible for the visa that he currently holds, a revocation of the visa may take place.  There must be an actual finding of ineligibility to support the revocation.

Aside from eligibility and national security grounds for revocation, the other enumerated grounds for revocation include: the visa holder was ordered excluded from the US, permission was requested and given to the visa holder to withdraw his application for admission, prior nonimmigrant waiver granted was withdrawn.

Provisional Revocation

Consular officers are given the authority to revoke visas immediately while considering facts determining grounds for ineligibility.  This is called the “provisional revocation.” Generally, notice of revocation shall be provided to the visa holder but only “if practicable.” This means that even if the visa holder is not yet notified, his visa may be considered revoked provisionally. Whether or not the visa holder is notified, once the revocation is entered into the State Department’s Consular Lookout and Support System (CLASS), the visa is no longer valid for travel.

When the findings of the consular officer are final to warrant a revocation after a provisional revocation, the visa holder is notified and will be asked to submit the issued visa to be stamped with the word “REVOKED”. The rules are clear that if the visa holder shall not surrender the visa for physical cancelation, the finding of revocation still stands.

Re-Applying For the Visa

Since 1997 judicial courts have been divested of jurisdiction to review the findings of the consular officers in regards to revocation of visas. The latest regulations also eliminated the request for reconsideration of a revoked visa rendering the findings of revocation final. The visa holder who believes that the visa is revoked without sufficient basis may then re-apply for another nonimmigrant visa. In this new application, he will be afforded an opportunity to prove his eligibility for the re-issuance of the visa that was previously revoked. This will require the applicant to be in possession of countervailing proof of eligibility.

Appreciating the Value of Possessing Visas

Each year it has become complicated to obtain visas for some who are truly deserving of this immigration benefit. The abuse of the use of nonimmigrant visas not to mention fraudulent applications had been the reason for heightened standards for applicants for visas.  With the extended discretion granted to consular officers in revoking already issued visas, a nonimmigrant visa holder should understand the value of having one in his possession and make sure that it is use accordingly to avoid losing it.

( Atty. Lou Tancinco may be reached at law@tancinco.com or at 1 888 930 0808 or 1 415 397 0808 or visit her website at tancinco.weareph.com/old).

Categories
Updates

USCIS Releases Revised Application for Naturalization Form

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As part of its ongoing form improvements initiative, USCIS released a
revised Form N-400, the Application for Naturalization, on February 4,
2014. The revised form is now available online at uscis.gov/n-400.
Petitioners may continue to use older versions of the form during an
initial, 90-day transition period. Beginning May 5, 2014, older versions
will not be accepted; on and after that day, these versions will be
rejected and returned to the petitioner.

While the form has been revised to provide clearer instructions, make
key eligibility determinations and use key technology improvements,
requirements for naturalization have not changed. Key changes in the
form include:

  • Questions to ensure compliance with the Intelligence Reform and
    Terrorism Prevention Act of 2004 and the Child Soldier Prevention Act of
    2007 and support the security of the United States.
  • More clear and comprehensive instructions that highlight general
    eligibly requirements and provide specific guidance for each part of the
    application.
  • 2D barcode technology that allows USCIS to more efficiently scan data for direct input into USCIS systems.
Categories
Updates

USCIS Publishes Updated H-2B Visa Numbers February 7, 2014

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On February 7, 2014, USCIS provided an update of the amount of
cap-subject H-2B visas received and approved by the federal agency for
the first and second halves of Fiscal Year 2014. According to USCIS, a
total of 26,026 beneficiaries have been approved for the first half of
Fiscal Year 2014, with an additional 6,404 petitions pending. 3,318
beneficiaries have yet been approved for the second half of Fiscal Year
2014; 7,996 petitions are pending.

Congressionally-based legislation limits the amount of H-2B visas
provided per fiscal year to a total of 66,000, with 33,000 allocated for
employment for the first half of the fiscal year and 33,000 allocated
for employment for the second half of the fiscal year. Unused numbers
from the first half of the fiscal year are made available for use by
employers seeking H-2B workers during the second half of the year.

Categories
Updates

OFLC Deactivates Four H-2 Visa-Related Email Boxes

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As part of its modernization initiative and new requirements related to
cloud computing, the Office of Foreign Labor Certification’s National
Processing Center deactivated four email boxes on February 3, 2014:

H2A.Amend-Extend.Chicago@dol.gov
H2A.Abandonment-Termination.Chicago@dol.gov
H-2B.Amend-Extend.Chicago@dol.gov
H2B.Abandonment-Termination.Chicago@dol.gov

Any H-2A employer who needs to request an amendment or extension, or
submit a notice of worker abandonment and termination, should use the
TLC.Chicago@dol.gov email address. Remember to include in the subject
line of your email the term “Amend and Extend” or “Abandonment and
Termination”. Such requests can also be submitted via fax to (312)
886-1688 or mailed to:

U.S. Department of Labor
Office of Foreign Labor Certification

Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105