Author: tancincowp

The gang of eight bi-partisan Senators in charge of drafting the comprehensive immigration recently introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013 (S.744).  The 844-page bill contains several components, which includes border security, reforms to immigrant and non-immigrant visas among others.

For those who are waiting to be reunited with their families in the United States, will the reunification happen sooner or will their opportunity to immigrate be affected by the proposed senate bill? The heart and soul of the immigration bill is the legalization provision and there will be a path to citizenship for the 11 million undocumented immigrants living in the United States. What are some of the details of this earned citizenship and how will these provisions affect a prospective Filipino immigrant?

Cutting Family Categories v. Merit Based Visas

There is a proposal to cut the four family based preference categories to two.  The two categories will cover (1) U.S. citizens petition for unmarried adult children; married adult children who file before age 31 and (2) unmarried adult children of lawful permanent residents.

The Filipinos have the longest backlog when it comes to sibling petitions. There is a ridiculous waiting time of at least 24 years before a visa is issued to a sibling. The senate bill proposed to repeal this specific category for sibling. If the bill is passed into law and 18 months after its enactment, U.S. citizens will no longer be able to petition their brothers or sisters.  Those who were petitioned before the law is enacted may be grandfathered. There is an option for those whose petitions have been pending for five years to apply for a “merit based visa”.  A family member may be awarded points based on education, employment, and length of time the family based petition is pending. Those with most points will earn a visa.

RPI Status v. Green Card

A Registered Provisional Immigrant (RPI) status is proposed for those in unlawful status or those who have no legal documents to stay in the United States. The bill provides that they may apply to adjust their status to that of Registered Provisional Immigrant Status. This RPI status is distinct from a lawful permanent resident status.

There are certain criteria that must be met before applying for this RPI status. First, the cut off period is December 31, 2011. This means that those applying must have been in the United States prior to December 31, 2011 and were able to maintain continuous legal presence. They should not have been convicted of aggravated felony, an offense in their home country, unlawfully voted and inadmissible for criminal, national security, public health and other morality grounds.

Work Authorization and Travel Permitted

Just like lawful permanent residents or green card holders, those in RPI status can work for any employer and travel outside the United States. Their spouses and children may qualify as their derivative beneficiaries as long as they are in the United States. The status of those granted RPI is the same as those lawfully present in the United States except they are not entitled to premium assistance tax credit and the Affordable Care Act.

Those Ordered Removed May Return to the United States

An individual who has a removal order may be permitted to apply for RPI status. Interestingly, even those who were sent back to the Philippines on orders of removal and were in the United States prior to December 31, 2011 may re-enter the United States in RPI status.  The bill limits those who may return to the United States only if this individual was not deported for non-criminal reason and that they have spouses, parents or children who are U.S. citizens or green card holders. Those young immigrants who may be eligible for the DREAM Act but were sent back to their home country may also re-enter in RPI status.

Immigration Reform Hasn’t Happened Yet

Among the lengthy provisions of the S.744, the merit based system, repeal of two family categories and the RPI visa status are among the most controversial provisions to our community. The introduction of this bill is just the first step taken by the bi-partisan senators. It is only when Congress approves the bill and is signed into law by the President will those eligible individuals start applying. Prospective immigrants must be cautioned against premature and fraudulent offer of services to avail of the benefit of an immigration reform. There is no law yet. The members of the House of Representatives are still working on their version of immigration reform.  More changes are expected as the Senators debate on the bill in the coming weeks.

(Atty. Lourdes Tancinco is a partner at Tancinco Law Offices based in San Francisco CA and may be reached through email at law@tancinco.com or call 887 7177 or 721 1963. You may also visit her website at tancinco.weareph.com/old)

One who has traveled to the United States, as a visitor is familiar with the “white” card. This is the Form I-94 submitted upon entry to the United States. What actually is the importance of this card to a traveler? And what major changes is the Department of Homeland Security implementing with regards to the use of this card?

Maria applied for a visitor visa at the US Embassy in Manila. She was issued only a one-year visa to enter the United States.  Last year, Maria left for the United States to visit her relatives. She filled up a white form I-94, which was provided by the airline crew on board the plane. At the port of entry in Los Angeles, she presented her passport with her visa together with the I-94. The Customs and Border Protection inspector stamped on her I-94 the date of her arrival and a handwritten date indicating her authorized stay of six months.

While in the United States, a friend of Maria encouraged her to stay longer and work as a caregiver. After working without the proper documents for 11 months, Maria decided to return to the Philippines.

One month later, Maria decided to renew her visitor visa with the US Embassy. When she applied for her visa and she was told that she overstayed as a B1 visa holder and a new visa my not be issued to her. Maria argued erroneously that she did not overstay because her visa had”one year” validity. Unknown to Maria, the I-94 card that was on her passport is the document that indicated her allowable period of stay and not her visa. What can Maria do to obtain her renewal? What is the difference between the I-94 card and her visa?

Importance of the I-94

For people entering the United States as non-immigrants, such as B-2 tourists or H-1B workers, Form I-94 is a key immigration document. This is because Form I-94, which is the arrival/departure record issued by the US Customs and Border Protection (“CBP”) upon entering the United States, dictates how long a person can legally stay in the United States. As such, it is very important to track the expiration date listed on Form I-94 because the failure to depart the United States prior to the expiration date or the failure to extend one’s status prior to the expiration date can have severe immigration consequences.

Just like Maria, many people confuse the expiration date on the visa stamp in their passports with the expiration date on Form I-94.  It is Form I-94, which controls how long you can stay in the United States. The visa stamp in your passport is your entry document that permits you to request admission into the United States, or to “knock on the door” as some say. Once CBP grants your admission and lets you enter the door, you will be issued a Form I-94, which tells you how long you are permitted to remain in the United States. For example, if you are issued a 10-year multiple entry B-2 tourist visa from a US Embassy and you travel to the United States, you will only be allowed to stay for the period dictated by Form I-94 such as 6 months, even though your visa stamp is valid for ten years.

Overstaying the period allowed to remain in the United States can result in harsh penalties. Once Form I-94 expires, you are out of status and accruing unlawful presence in the United States, and you will not be able to extend or change your nonimmigrant status. If you accrue 180 days or more of unlawful presence, you will be barred from reentering the United States for three years. If you accrue more than one year of unlawful presence, you will be barred for ten years. In addition, while overstaying and being out of status for a period less than 180 days will not subject you to any bars, it may make it very difficult to obtain another visa to enter the United States. In the case of Maria, she is barred for three years for overstaying for more than 180 days but less than one year. She may want to try to apply for the visitor’s visa again in 3 years.

Discarding the I-94 White Card

Beginning April 30, 2013, CBP will begin implementing automated Form I-94s to increase efficiency and streamline the admissions process into the United States. The Form I-94 automation will be phased-in through April and May. With the new I-94 automation, travelers will no longer receive the paper Form I-94. Instead, travelers will receive a stamp in their passport containing the date of admission, class of admission or visa type, and admitted until date. The Form I-94 will then be created in an electronic format by scanning the traveler’s passport or travel document. The automated Form I-94 will only be issued to air and sea arrivals. People entering at land border ports of entry such as from Canada and Mexico will continue to receive the paper version of Form I-94. After entry, travelers who arrive by air or sea can obtain a print out of their Form I-94 by going to the CBP website at www.cbp.gov/I94.  

For individuals who will be extending or changing their nonimmigrant status or who will be adjusting their status to lawful permanent residents, they will need to submit the print out of the electronic Form I-94 to USCIS. Upon departing the United States by air or sea, travelers will no longer need to surrender their Form I-94. CBP will record an individual’s departure using manifest information from the air or sea carrier.   

Considering the changes to be made and the importance of the I-94, it is highly recommended that each person admitted into the United States keep track of their authorized stay. For safety and as reminder of their authorized stay or at least until one gets use to the automated I-94, traveling non-immigrants may want to consider printing and maintaining a copy of their electronic Form I-94.  

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 02 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)  

NINE states and the District of Columbia (D.C.) legally recognize same sex marriages. When one of the parties in the relationship who is either a lawful permanent resident or a U.S. citizen, files an immigrant petition for his/her partner, the petition is still expected to be denied by the U.S. Citizenship and Immigration Services.  

Regina entered the United States as an H1B visa holder. In 2004, she married her partner, Jane, in a civil ceremony held in San Francisco, California when same sex marriage was still legal. When her visa expired in 2009, her employment was terminated and her authorized stay expired. She decided to stay with her same sex partner Jane who is a U.S. citizen.  Regina is now undocumented. She realizes that the U.S. Citizenship and Immigration Services do not recognize their marriage.  With the recent hearings conducted by the U.S. Supreme Court, Regina is hopeful that her marriage to Jane may soon be recognized and she can receive her green card through her partner’s petition. What are the chances that these aspirations of Regina become a reality? How many more non-U.S. citizens are in the same predicament as Regina?

Supreme Court Cases on Gay Marriages

For two consecutive days this month, the US Supreme Court heard oral arguments in two cases involving same-sex marriages.

The first case involves the constitutionality of California’s Proposition 8. This case started a few years back when the Mayor of San Francisco started performing same-sex marriages.   Immediately, conservative organizations questioned the validity of these marriages by filing test cases in California courts. Eventually these cases reached the California Supreme Court which declared these same-sex marriages as valid.

These conservative and religious groups, of course, did not want to accept the California Supreme Court’s decision as the final word.  Instead, they decided to go directly to the people of California by starting a ballot initiative and asking for their vote to ban same-sex marriages.  This ballot initiative became known as Proposition 8 (or, Prop 8). The Prop 8 ballot initiative banning same-sex marriages passed by majority vote.

Hence, we had a Supreme Court of California’s decision declaring same sex marriage as legal and a Prop 8 initiative banning same sex marriage. With these contradictory resolutions, the matter is now with the U.S. Supreme Court for review.

 Parties who were denied marriage licenses because of Prop 8 filed test cases in California courts questioning the validity of Prop 8. The simple argument is that “marriage” is a basic civil right and the ban on same-sex marriage is unconstitutional. The Governor of California as well as the Attorney General of California agreed; and, refused to defend the constitutionality of Prop 8 in court.  They instead authorized private parties, who were the original proponents of Prop 8, to defend Prop 8 in court. Federal district court, as well as the subsequent federal Court of Appeals case, issued judgment in favor of same-sex marriages. Hence, the case was brought to the US Supreme Court.

There are a number of ways that the US Supreme Court can decide this matter. The hope of the LGBT community, of course, is for the US Supreme Court to issue a ruling that marriage, regardless of the sex of the couple, is a constitutional right and made applicable to all 50 states. The argument for the proponents of Prop 8 is that the ban on same-sex marriages was passed by the vote of the people and courts should not impose their judgment on the voters.  The oral arguments on the first of these 2 same-sex marriage cases were heard on March 26, 2013. It is expected that the US Supreme Court will come out with a decision in June 2013.

The second of the same-sex marriage cases involves the Defense of Marriage Act (DOMA), which was heard on March 27, 2013. This case involves a same-sex couple who had been together for more than 2 decades. This couple got married 2007 in Canada (where same-sex marriage is legal). The couple lives in New York (where same-sex marriage is also legal).  One of them died in 2009 and the survivor inherited the property.  Under federal law spouses can inherit properties from each other tax-free. The parties in this DOMA, however, faced an inheritance tax bill of $360,000 from the IRS simply because federal law does not recognize benefits for same-sex couples.  

Similar to the Prop 8 case, this DOMA case was not defended by the executive branch of the US government.  President Obama is of the opinion that DOMA is unconstitutional and has refused to defend the DOMA law in court.  Instead, the House of Representatives Republicans hired their own lawyer to defend the law.  Since this matter is now with the U.S. Supreme Court, if DOMA is declared unconstitutional there would be an end to discrimination against gay married couples in terms of the administration of federal programs and in the area of immigration.

 Having had centuries of marriages involving only man and woman, it is understandably hard to change the minds of people to accept a different norm. So how is the same-sex marriage issue before the US Supreme Court relevant to us as Filipinos? If either one or both of the two cases before the US Supreme Court results in a favorable judgment for same-sex marriages, then it will have far-reaching consequences. Under current law, same sex couples like Regina and Jane may not obtain immigration benefits that is the non-U.S. citizen spouse in the same-sex relationship cannot be petitioned by a US citizen spouse. However, if either of the two same-sex marriage cases is a win, then federal immigration laws (as well as all other laws as diverse as taxation, insurance, SSS benefits, survivors’ benefits, etc.) will have to radically change. Benefits accruing to same-sex couples, benefits that opposite-sex couple now merely take for granted as a given, will be enormous.  The U.S. Supreme Court will decide on the cases in June 2013 and quite predictably, in analyzing the recent development in these cases, it will not be hard to see the day the non-U.S. citizen party in the same-sex relationship may migrate to the United States.

(Tancinco may be reached at law@tancinco.com or at 1-888-930-0808 (US) or 02 887 7177 (Manila) or visit her website at tancinco.weareph.com/old)