Author: tancincowp

Pablo arrived in the United States using an H2B visa. Having paid his recruiter a substantial amount of money, he was told that he will work for a hotel in Nevada. Upon his arrival, he found out that there was no employment for him in a hotel. Instead, he was forced against his will to work in various households as a housekeeper for a minimal pay. His recruiter kept his passport with the visa that eventually expired. After one year without legal status, he left his housekeeping job without his recruiter’s knowledge. He finally found a job as a live-in caregiver and worked 24/7 without leave. This time he was paid a reasonable salary for his services.

Since he is undocumented, Pablo would like to legalize his stay by applying for a working visa. He found out that obtaining a visa as a caregiver could take several years. He also learned that being in unlawful status will make it legally impossible for him to change status to a nonimmigrant working visa. Pablo heard about the case of a Filipina getting a “T” visa as a victim of human trafficking. He wants to apply for the same visa. Pablo was told that he fits the profile of a trafficking victim. But when he was informed that part of the requirement is that he assists law enforcement agencies in prosecuting his recruiter and employer, he had second thoughts about his decision to file the T visa. According to Pablo, he could not in conscience assist in persecuting the person who helped him in coming to the United States. He said that despite paying the recruiter money, he still feels that he owes this person a debt of gratitude.

The story of Pablo is a story of many of our “kababayans” who are victims of human trafficking but are afraid to pursue their cases against their recruiters. Very few find the strength to fight for their rights and liberate themselves from the traffickers with law enforcement authorities’ support.  In an effort to reach out and assist victims of human trafficking, the Obama administration proclaimed the month of January as the National Slavery and Human Trafficking Prevention Month.

Human Trafficking

Human trafficking is a serious offense. It is a form of modern-day slavery in which traffickers lure individuals with false promises of employment and a better life. Traffickers often take advantage of the vulnerable population, the poor, unemployed individuals, the undocumented who lack access to social safety nets.

Not all failed recruitment or labor contracts may be classified as trafficking. To consider a case as ‘trafficking’ depends on the type of work, the use of force, fraud, or coercion to obtain or maintain work.

A trafficking survivor may avail of the protection of the law anytime he can show that he was a victim of a “severe form of trafficking in persons”. The severity may be proven by showing that the victim was brought to the US either for: (1) the purpose of a commercial sex act by force, fraud or coercion, or was under age 18, or (2) labor or services induced by force, fraud or coercion and for the purpose of subjecting the victim to slavery, debt bondage or involuntary service

The “T” Visa

In October 2000, Congress created the “T” nonimmigrant status by passing the Victims of Trafficking and Violence Protection Act (VTVPA). The legislation strengthens the ability of law enforcement agencies to investigate and prosecute human trafficking, and most importantly, offers protection to victims.

For those who are trafficking victims and are undocumented, the “T” visa may be availed of. The T Visa allows victims to remain in the United States and obtain permanent immigrant visa status.

Prosecuting the Trafficker

The T visa has a dual purpose. It primarily assist the victims of trafficking and secondarily  assist law enforcement authorities in the investigation or prosecution of human trafficking cases. Under the secondary purpose, the applicant for the T visa is expected to comply with reasonable request by authorities to assist in the investigation and prosecution of trafficking. If the victim is not willing to cooperate, the T visa will not be approved. This part of the application process is where some victims are afraid to pursue their applications for T visas. To help the victims gather courage to assist in prosecution, the family and community must be supportive of the efforts undertaken by the trafficking victim. The prevention of human trafficking requires a team effort not just from the government but also from public.

Filipino Trafficking Victims in the U.S.

There is no exact number on how many Filipinos are victims of human trafficking in the United States. In the media and even in the blog of the U.S. Citizenship and Immigration Services, many Filipinos relate how they became victim of unscrupulous individuals who forced them into labor and debt bondage. While we often hear of domestic workers as victims, recently, teachers on H1B visas are also claiming to be victims of trafficking. In the recent federal case of Nunag Tanedo v. East Baton Rouge Parish School Board there were 350 Filipino teachers who scored a victory when after trial the jury awarded them $4.5 million in damages. These cases and the other human trafficking cases where the employers were investigated, charged and convicted manifest the increasing awareness of individual against human trafficking. We each play a role in curbing extreme exploitation and abuses of workers and innocent kababayans.

(To report trafficking in persons call the following U.S numbers: 1-888-428-7581 or 1-888-3737-888.  Author Atty.Lourdes Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

Joel entered the United States n 2007 with a crewmembers’ (C1/D) visa.  He had a contract to work for a cruise ship. He was employed for one year but during one of their trips in Florida, he decided to jump ship and illegally stay in the United States. Joel met Rowena and they got married after a few months. Rowena became a naturalized U.S. citizen and filed a petition for Joel.

The U.S. Citizenship and Immigration Services denied Joel’s application for immigrant visa on the ground that individuals with crewmembers’ visas are not allowed to receive their green card through adjustment of status. He was told that he had to get his visa outside the Untied States or specifically at the U.S. Embassy in Manila.

Joel was hesitant to depart for the Philippines for fear that he will not be issued a U.S. visa since he overstayed and incurred unlawful presence in the United States for more than five years. He has been a “TNT” or undocumented for one year and was told that if he departs, the 3-10 year bars will apply to him. This means that he will not be able to return until after ten years even if his spouse petitions him. As a result of this bar, Joel opted to stay undocumented and risk deportation/removal. He now has two U.S. citizen children and is working without authorization as a parking attendant. Rowena, on the other hand, has been unemployed for quite some time due to disability. Joel heard about the “stateside” waiver and is wondering if he may now finally legalize his stay. Is he eligible for the provisional waiver of unlawful presence? How will he go about applying for this waiver?

Beginning March 4, 2013 immediate relatives of United States citizens who overstayed their authorized stay in the US may be allowed to legalize their status. After the U.S. Citizenship and Immigration Service first announced its “stateside” waiver policy in April 2012, it took ten months before a final rule was released on January 3, 2013.

INDIVIDUALS WHO WILL BENEFIT FROM THE STATESIDE WAIVER

The immigration policy on Provisional Unlawful Presence Waiver, which is most often referred to as the “stateside” waiver, was announced last year to benefit undocumented immigrants who are immediate relatives of U.S. citizens and who are in the United States in unlawful status. It is to be emphasized that not all undocumented relatives of United States citizens will benefit from this new policy. It is limited only to parents, spouses and minor children of U.S. citizens. Lawful permanent residents or green card holders may not confer benefits of this law to their spouses, minor children or parents.

THE TRADITIONAL WAIVER

Prior to the released of this provisional waiver policy, undocumented relatives of U.S. citizens who are not eligible to get their green cards in the United States must leave the US to get their visas through consular processing with a U.S. Embassy abroad. The consular officer will then require a traditional waiver of the unlawful presence only after the interview.

If the relative leaves the US to get the visa, he will be denied because of his accumulated unlawful presence in the United States. The basis for the denial is the 3-10 year bar imposed by legislation in 1997. This situation created a catch 22. Within the United States, this individual is denied the adjustment of status and outside the United States, he will be denied the immigrant visa through consular processing because of the 3-10 year bars. If the individual decides to get the visa outside the United States, he will have to take the chance of applying for the waiver of his unlawful presence while outside the United States and wait until it is approved which may take several months or years. In the meantime, the individual and his family members are separated while the application is pending.

To remedy this situation, the individual who incurs unlawful presence will be permitted to file a provisional waiver of the “unlawful presence” while the individual is still in the United States.

THE PROVISIONAL WAIVER

The release of the final rules on provisional waiver was anticipated for almost a year. The length of time it took for the rules to become final meanT that the U.S. Department of Homeland Security took serious steps to consider how limited or extensive its impact will be on those who are affected by this new policy.  An examination of the rules reveal that this provisional waiver has very limited applicability. Aside from having to prove “extreme hardship”, among the limits set are as follows:(1) it waives only unlawful presence and not other grounds of inadmissibility such as fraud or misrepresentation; (2) applies only to spouse, parents and minor children of immediate relatives; (3) does not apply to those who were previously interviewed for immigrant visas at the U.S. Embassy; (4) does not give provisional immigration benefit such as employment authorization or advance parole and (5) no appeal from a denial of the waiver.

The U.S. Citizenship and Immigration Service clearly is taking an incremental approach to providing relief to undocumented immigrants. This provisional waiver policy is for a recognizable group of “immediate” relatives. It is going to be implemented in the spirit of family unity but with its limited applicability, we cannot raise our hopes too high. A comprehensive fix to the broken immigration system is still the only solution to curb illegal immigration.

(Tancinco may be reached at law@tancinco.com or a 887 7177 or 721 1963)