Author: tancincowp

Anna was petitioned by a  financial institution based in New York.  Three years after receiving her green card, her U.S. employer suffered financial losses and Anna was laid off from her job. Thereafter, she got an offer and accepted a job from a financial institution based in the Philippines. Anna was paid in dollars at almost the same rate as the wages she received from her previous employer. For the last two years, Anna made several trips to the United States, just for brief vacations and visits to her family.  During her last entry to San Francisco, she was questioned by the US Customs and Border Protection and asked about her activities abroad. Anna would like to maintain her immigrant status but fear that she may be forced to give it up. What can she do?

While there are approximately 11 million undocumented immigrants waiting for an opportunity to obtain greencard status in the US, there is also a significant number of immigrants who risk losing the resident status they have already acquired. These are the green card holders who reside outside the United States for extended periods of time.  With economic globalization, it is not unusual for a resident alien to find himself working in more than one country outside the US. Since a prolonged absence from the United States may have an adverse impact on the green card holder, certain steps may be taken in order to avoid or at least lessen the risk of involuntarily losing one’s permanent resident status.

Not Simply A Matter of Time

How long a green card holder may stay outside the United States without fear of losing his status is a question often asked immigration attorneys because it is certainly a commonly held and quite understandable belief that the amount of time spent abroad determines abandonment or preservation of resident status. Actually, it is the intent of the resident that is key to a finding of abandonment.

In determining intent, several factors are taken into account. “Time spent” outside the United States is only one of these factors. Returning to the United States once a year for a few months, or  even every so often, does not “automatically revalidate” one’s green card if the lawful permanent resident lives abroad.

If the green card holder spends less than six months, barring other circumstances, the CBP inspector typically allows automatic entry and usually does not inquire further as to the intent. When a person has been abroad for a lengthier period and is seeking admission, he may be asked extensively about his purpose for the entry and may be subjected to questioning regarding his ties in the United States. While it rarely happens, there is also a possibility that a person seeking admission will be placed in removal proceeding if the inspector determines that that he has abandoned his US residency.

If those traveling back to the United States after six months of stay in the Philippines risk being questioned about their intent to preserve or relinquish their status, those traveling after more than one year are at greater risk of losing status. The regulations clearly state that if the lawful permanent resident remains outside the United States for more than one year, the Department of Homeland Security require invalidation of the green card. This may not be done, however, without affording the green card holder the opportunity to be heard and make a showing that he has not abandoned his resident status despite being abroad for over a year. This means that, unlike non-immigrants who may be removed immediately (“airport to airport”),  green card holders may not be subjected to an expedited removal since they have the right to due process of law. Unfortunately, there are green card holders who surrender their status at the airport voluntarily and depart the same day or a few days after. This is an option taken by those who obviously have no intentions of residing permanently in the United States.

Exploring Options

Since Anna is confronted with a situation of whether or not she wants to preserve her resident status, she should explore her options. If she wants to hold on to her green card, she should establish a clear intent to maintain residence in the United States. One of the ways she could do so is to provide proof of ties to the United States: property ownership within the US, maintaining bank accounts, holding assets in the US, uninterrupted filing and payment of taxes, among others.

If Anna has to stay in the Philippines for more than one year due to circumstances beyond her control, she should also consider applying for the special immigrant visa (SB1) at the US Embassy before traveling back to the United States. To obtain this visa, there must be proof that the trip to the Philippines is temporary and that the stay was protracted for reasons she could not prevent or control.

Another option for Anna, assuming she wants to travel back to the United States after one year of stay in the Philippines, is to try to apply for the Form I-193 Application or Waiver of Passport and/or visa at the port of entry. If it is approved, she will be allowed inside the United States. if it is denied, she may still enter the United States, but she will have to appear at a removal hearing before an immigration judge to explain herself.

If continuing possession of a green card is actually not needed for stay or travel, voluntary abandonment of Anna’s green card (by executing a Form 1-407 at the U.S. Embassy or at the Port of Entr) is always an option. This is usually taken by those who have immediate relatives  i.e.  U.S. citizen spouse or parent or a 21 year old child, who can always petition them again at some future time to obtain a new green card and thus reacquire resident status.

Whatever option is taken will depend on the circumstances of each individual case. Since it typically takes years and a lot of effort and money to get an immigrant visa processed, it is important to know one’s options and take whatever steps are necessary to preserve one’s green card and prevent the unintended loss of one’s immigration status.

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

Federal District Court Recently Dismissed Filipino WWII Class Action Suit

On March 26, 1945, Veteran Edmundo voluntarily enlisted with the Military Police, 3rd Replacement Battalion, Philippine Army under the U.S. Armed Forces of the Far East. In his claim for one time benefit under the Filipino Veterans Equity Compensation (FVEC), he vividly recalls being in the lead vehicle escorting a convoy of four trucks full of Japanese Prisoners of War. He was with the elements of the 11th Infantry Division and the 11th Airborne Division in Southern Luzon who fought and successfully drove away the Japanese Imperial Army. More importantly, Veteran Edmundo has in his possession a photograph of himself with a group of American soldiers standing in the back row.  Despite all of this concrete evidence of military service, the name of Veteran Edmundo was not in the Missouri List or the National Personnel Record Center at St. Louis Missouri.  His claim for compensation of $15,000 under the FVEC was denied.

In his video hearing held on February 12, 2013 Veteran Edmundo reiterated his claim for benefits under the FVEC before the Board of Veterans Appeal.   Interestingly, after presenting his case, the Board Member asked only one irrelevant question: “Are you happy about your hearing today?” Veteran Edmundo, hiding his downheartedness, answered affirmatively. He realized the uncertainty and the strong possibility of denial of his veteran claim for benefits. His case is similar to the other veterans whose names are not on the Missouri list and whose claims were recently denied in judicial courts.

The Missouri List

The National Personnel Records Center (NPRC) is home to the Revised Reconstructed Guerrilla Roster ((RRGR) also known as the “Missouri List”. This is the official database of all personnel who served in the armed forces in the 20th century, which is housed in St. Louis Missouri.

The Missouri List is now incomplete and inaccurate. In 1973, a disastrous fire at the NPRC destroyed approximately 80 percent of Army personnel records from November 1, 1912 to January 1, 1960. As a result, verification at the NPRC of thousands of Filipino World War II veterans’ service yielded negative results. The case of Veteran De Fernandez is a classic example of a genuine war veteran whose name is not in the Missouri list.

Veteran De Fernandez enlisted on June 10, 1940 with the 24th Field Artillery Regiment which was then part of the United States Army’s Philippine Division. It was formed in 1922 and was based at Ft. Stotsenburg in the Philippines. He participated in the defense of Manila and after the United States army’s capitulation, he was captured by the Japanese Imperial Army and forced to walk the infamous Bataan Death March. He later was incarcerated at the Camp O’Donnell Concentration Camp in 1942. For his valiant service, he was awarded the American Defense Service Medal with one bronze star, the Asiatic Pacific Theatre Medal with one bronze star, the Distinguished Unit Badge with two oak leaf clusters, the Philippine Defense Ribbon with one bronze star, and the Philippine Liberation Ribbon with one bronze star.

Despite his well-decorated service on behalf of the United States his name does not appear on the Missouri List. He is one of the plaintiffs in the case of De Fernandez et al v. Department of Veterans Affairs filed with the U.S. District Court for the Northern District of California.

Unfavorable Judicial Decisions

The month of February is a tragic month for thousands of World War II veterans who are appealing their denials of compensation under the FVEC. On February 7, 2013, the Ninth Circuit Court of Appeals decided against the plaintiff veterans in the case of Recinto v. U.S. Department of Veterans Affairs based on lack of jurisdiction.

The latest blow against the Filipino World War II veterans came this week in a decision released on February 19, 2013 by the U.S. District Court of Northern California. The court dismissed the class action lawsuit filed by Veteran RomeoDe Fernandez, Ciriaco C. Dela Cruz and Valeriano C Marcelino and the Veterans Equity Center challenging the procedural policy of the Veterans Affairs of relying solely on the Missouri list as basis for denying benefits under the Filipino Veterans Equity Compensation Fund.

While the Recinto case involves similar circumstances with the De Fernandez case, they are also distinct in some ways. The De Fernandez case is a class action suit and involves an organization as a plaintiff, the Veterans Equity Center. In a prior precedent case, Ninth Circuit ruled that district courts are not divested of jurisdiction where an organization is a plaintiff. Nonetheless, Judge Saundra Brown Armstrong dismissed plaintiff veterans’ case for lack of jurisdiction.

President Obama reiterated in October 2012, his commitment to honor and address the impending concerns of our Filipino World War II veterans by establishing the Inter-Agency Working Group. The latter is composed of the National Archives Record Administration, Department of Defense and Department of Veterans Affairs. Likewise, a 335-page document entitled “U.S. Army Recognition Program of Philippine Guerillas” was released in December 2012 with the hope that the 24,385 whose FVEC claims were denied be reconsidered. Instead of positive outcome of claims, these adverse judicial decisions and still more outrageous VA denial of claims were being released recently.  It makes us reflect on whether our World War II veterans will ever receive the justice they truly deserve. Or will their recognition remain frustratingly elusive?

(Tancinco may be reached at law@tancinco.com or at 871 7877 or 721 1963)

Immigration reform has been the central issue of discussion since last week. It started with the gang of eight bi-partisan Senators introducing their immigration reform plans, followed by President Obama’s announcement on his detailed plan. The Congress’ House Judiciary Committee also conducted its first hearing  choosing immigration as their subject of discussion. All these indicate that the momentum for a real immigration reform is building each day drumming up excitement to the immigrant communities. Several of those who will possibly benefit from the immigration reform are eagerly seeking clarification on steps that may be taken in the event the law is passed.  Very recently, I received the following email from a reader:

I came here in the U.S with a tourist visa in 2008.  During the exact date of my expiration stay of 6 months on April 13 2009, I married a man with a permanent status.  We have conflict in our relationship and we don’t live together now.  He does not want to get his citizenship and also he does not want to file a petition for me up to this time and then he also does not want to divorce me.

My question is, what should I be doing right now in preparation for the incoming immigration laws of President Obama? Secondly, can I possibly file on my own petition without any required signature of my husband? Thirdly, with this situation of mine, should I be doing something, like filing a divorce in preparation for the possible amnesty as being pushed by Pres. Obama? Please help!- Marie

 Marie presents a typical visitor visa holder who overstayed and fell out of status.
For those who are currently undocumented, understanding the basic principles laid down by the bi-partisan Senators  and President Obama will provide us with the idea on what we anticipate Congress would pass as immigration reform.

Obama’s Plan

In his speech last week, President Obama generally mentioned four parts of his proposed immigration reform (1) continue to strengthen the borders (2) crack down on companies that hire undocumented worker (3) hold undocumented immigrants accountable before they can earn their citizenship; this means requiring undocumented workers to pay their taxes and a penalty, move to the back of the line, learn English, and pass background checks (4) streamline the legal immigration system for families, workers, and employers.

The gang of eight bi-partisan Senators laid down four pillars of their immigration reform plan (1) Create a tough but fair path to citizenship for unauthorized immigrants currently living in the United States that is contingent upon securing the borders; (2) reform the legal immigration system to better recognize the importance of characteristics that will help build the American economy and strengthen American families; (3) Create an effective employment verification system; (4) Establish an improved process for admitting future workers to serve the nation’s workforce needs.

Both President Obama and the gang of eight senators agreed that the immigration system is broken and that there is a need to fix it through a comprehensive reform. They both agreed that once the undocumented become legal immigrants, there would be a pathway to citizenship. The senators’ proposal, however, will allow the opportunity to become U. S. citizens only when the borders are fully secured. There is no such contingency on President Obama’s plan. Both border security and interior enforcement efforts have been aggressively taken in the last decade. There is a budget of $18 billion annually for enforcement to secure the border and the interiors. More than 409,849 were also deported in 2012 according the figures reported by the Department of Homeland Security. All these indicate aggressive efforts toward securing both the border and the interiors. To make security of the border as a condition precedent to receiving the green card will be unjustifiable.

Waiting in Line

Interesting to note is the proposal that those present in the United States and who are undocumented, will have to wait in line behind those who have been waiting for several years to receive their green card. This means that there will be no green cards to undocumented immigrants unless all those who have filed petitions ahead of them received their green cards. Unfortunately, close family members and legal permanent residents wait years or even decades to get a visa.

 It is not easy to simply get into the line. The waiting time is long especially for family based petitions of U.S. citizens for siblings coming from the Philippines. It takes 24 years before these siblings are able to immigrate. For adult children of U.S. citizens, it takes 16 to 19 years before a visa is made available. An undocumented who will have to wait that long before a green card is issued will suffer the effects of a backlog before his status is legalized. A real reform must provide a solution to reducing the backlog. This may be done by adding more visas to both family and employment categories.

To Marie and those who are similarly situated, keeping handy all immigration documents related to their entry to the United States may be a step towards preparing to legalize once status. Another important note is not to make major plans to travel unless it is authorized.

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