Author: tancincowp

Menchu, a Filipina nurse from Secaucus, New Jersey was recognized by President Obama as a hero for rescuing 20 premature babies during the 2012 Hurricane Sandy.  Menchu may not have realized the extent of her heroic deeds but her recognition by the President of the United States made us all proud of all hard working Filipino nurses.  Ironically, a few weeks after giving pride to the nursing profession, senatorial candidate, Cynthia Villar made hurtful remarks about Filipino nurses. In her statement on television, she used the words “ ano lang sila, nag aalaga who wants to be room nurse”.

While Villar was not afforded an opportunity to expound on her statement, we all understood it in a derogatory way.  First, to be a room nurse would require a Bachelor’s Degree in the United States specifically if the position were for an emergency room nurse or an operating room nurse. Second, to qualify for a professional working visa as a nurse under the H1B category, a nurse must have a Bachelors degree and be offered a position higher than that of a staff nurse. Such higher positions, for example, would be clinical nurses and nurse practitioners.

Associate vs. Bachelors Degree

The statement that nurses do not need Bachelors degree refers to RNs who are educated in the United States. To obtain an RN, almost all states only require an Associate Degree. This is the reason that the position of  “registered staff nurse” is not a professional position in H1B worker visas.  The position that is offered for an H1B visa requires as minimum a bachelors’ degree. Hence, if the position is simply for a staff nurse, the foreign educated RN will not qualify for an H1B. What would qualify an RN for an H1B visa are more complex nursing positions such as operating room nurses, clinical nurses and nurse practitioners, among others.

Although RNs are not generally qualified for the H1B professional working visas because the position only requires an associate degree, these foreign educated nurses are nonetheless eligible for a straight green card. If a U.S. employer offers a permanent full time job to a foreign graduate nurse, a petition is filed under the third preference category. Once the petition is filed and the priority date becomes current, the nurse may migrate directly with a green card status without need of being in a temporary working visa status. The downside to this, however, is that green cards under this category have a number of years of backlog.  

RNs who apply for immigrant visas in the United States are processed differently from other professionals.  Since nursing is still considered as a shortage occupation, the petitioning employers do not need to undergo the labor certification process. This is the process of determining availability of U.S. citizens or residents for the position before hiring a foreign national. The nurses, up to the present time, fall under the Schedule A category which means that they are pre-certified already and may file directly for immigrant visas.  

A verification process takes place before an RN is petitioned. The Commission on Graduates of Foreign Nursing Schools (CGFNS) administers a qualifying exam to verify foreign nurse credentials to ensure that the nurses meet the minimum educational requirement for RN licensure. After the CGFNS, the registered nurses are required to take the English proficiency test and thereafter pass the US national nursing licensure exam or the NCLEX.

When there was no retrogression or backlog in visa petitions, Filipino nurses were migrating in the United States at an accelerated rate. In fact in 2005, additional visas of 50,000 were allocated for nurses to fill up the severe shortage. However, beginning in 2007, employment petitions for nurses underwent retrogression and severe backlogs. This resulted in many nurses waiting in line for their priority dates to become current. As of today, visas are only being issued to RN petitions that were filed on or before September 2006.

Other Health Care Providers

Senatorial candidate Cynthia Villar may indeed have confused RNs with care providers who do not need a degree. But it was her manner of referring to all nurses that subjected her to severe criticism.

There are health care providers who can be petitioned by U.S. employers without need of a bachelors degree. These are the licensed vocational nurses, the licensed practical nurses, the certified nursing aides or the ‘caregivers’. It takes longer for these types of occupations to be processed for immigrant visas. The reason for their lengthy processing is that they are not ‘pre-certified’ as shortage occupation. It takes approximately 7-8 years before these occupations receive their immigrant visas.

In the coming decade, more than 78 million baby boomers are going to retire and there is an expected shortage of health care workers to fill those positions. The baby boomers will soon need health care themselves. In preparation for this shortage, and assuming that US immigration law pertinent to foreign educated nurses remains unchanged, there will be more nurse positions required. To prepare for the future, those who are interested to enter into this profession should continue to strive to complete their education and emulate their role models such as our very own Menchu Sanchez. She is the “taga-pagalaga” but her nursing profession has gained her honor when her true nurturing character was revealed through her heroic deed during a time of crisis. Indeed, she was a “taga-pagalaga” with a heart and pride. No one may take that away from every hard working and dedicated nurse who works anywhere in the world.

(Tancinco may be reached at law@tancinco.com or at 1 888 930 0808 (US) or at 02 887 7177 or 02 721 1963 (Manila).)

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)