Author: tancincowp

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)

Last week, world-renowned cyclist, Lance Armstrong admitted in his interview with Oprah that he used banned drugs to score victories on his Tour de France competitions. According to Armstrong, he feels “disgraced, humbled and ashamed by his actions”.  Telling the truth may have liberated him from living a lie for seventeen years, but this revelation comes with consequences.

In an immigration context, lying to an immigration examiner or on the immigration application also comes with serious consequences. There are lies that may be forgiven through waivers and lies that result not only in a denial of one’s current application but in permanent bars to receiving future visas.

Isabel entered the United States using the passport with a U.S. visa under the name of “Maricel”. She did not have to appear before the consular officer in 2000 to get the visa. A phony travel agent claimed that she looked like the picture on the passport and that she would be allowed to use the visa. Since Isabel always wanted to travel to the United States, she paid a significant amount of money to the agency and was able to enter the United States. After more than five years in the U.S., she met her partner in life. A petition was filed on her behalf but the U.S. Citizenship and Immigration Service denied the petition and her waiver application. Isabel was brought to the immigration court for removal/deportation.

In court, she renewed her application for her green card and her request for waiver. She admitted before the immigration judge that she used an “assumed name” when she entered the United States. The immigration judge was observing Isabel while she was testifying and noticed that there was lack of remorse on her part in admitting to the fraud. It was at that point that the judge asked her a moral question: “do you know what is right from wrong?”. Isabel answered ‘yes’ to the question. The Judge then continued to question her in this fashion until Isabel broke down in tears and admitted the reasons why she actually lied to the immigration officer about her identity.  Still in tears, Isabel asked for forgiveness and pled for compassion from the judge to allow her to stay in the United States so she continue to live with her ailing U.S. citizen husband. She said she regretted getting herself in this mess, she regretted being part of such a scheme assuming someone else’s identity.  She said she was never at peace during the years that she was using someone else’s identity but that she had hoped to be given a second chance so she could stay and take care of her ailing husband. The immigration judge granted her waiver and she was spared from deportation. She was granted a chance to right the wrong she committed.

Not all who engaged in fraud in immigration petitions are successful in obtaining waivers. The circumstances of each case are taken into account in determining whether an individual merits a grant of waiver. Those who are not granted waivers will not be issued visas and risk being deported or removed from the United States.

When Lying is Fraud

Not all lies will constitute fraud for purposes of denial of visa applications. Lies turn to fraud when it is a serious and material lie or misrepresentation. The most common types of serious “lies” in immigration are those involving (1) actual marital status; (2) good faith marriages; (3) traveling with different or assumed name and (4) political asylum applications.

There are those who are able to get away with the fraud and travel, like in the case of Isabel.  But once the fraud is discovered, the U.S. Department of Homeland Security will take steps to make sure that the individual who engaged in fraud is either prosecuted or put in deportation proceedings. Those found to have engaged in fraud in obtaining visas are specifically excluded from receiving benefits from recent immigration pronouncements such as prosecutorial discretion, deferred action, or provisional waivers. This indicates that fraud is as high a priority in the denial of visas as those who have been convicted of crimes or deemed to be national security threats.

Waivers of Fraud

Since ‘fraud’ in visa applications is specifically mentioned as a ground for denial of visas, it has been difficult to obtain waivers of fraud.

Prior to 1997, filing a waiver for the inadmissibility ground of fraud simply requires the filing of an accomplished I-601 form and filing fee. But after the enactment of the Illegal Immigration Reform Immigrant Responsibility Act (IIRAIRA), the law requires proof of extreme hardship to U.S. citizen or lawful permanent resident spouses or parents. Extreme hardship must be supported by strong evidence. Again, each case is different and the immigration examiner has discretion to adjudicate the waiver applications.

The Courage Not To Lie

It is not easy to admit a lie. Watching Armstrong admit his biggest lie is like watching an individual admitting his mistakes and lies before an immigration judge. Armstrong is a public figure, a legendary sports hero. His admission resulted not only in great loss to him monetarily but forever damaged his iconic place in the world of sports and philanthropy. While a person in removal proceedings is not under the same level of scrutiny, he certainly faces the same predicament. Like Armstrong, a person enjoying immigration benefits acquired through lying may get away with the lie, even for a long time, but it does not mean that the wrong is somehow righted, or that at some point, the lie would not be revealed. And if the reckoning comes, one has to deal with the lie, admit to it, and accept its consequences. This is difficult and it is disgraceful. So instead of going through the ordeal, one should deliberate seriously on the possible consequences before choosing to engage in fraud or lie in immigration applications. The courage is not in one’s ability to admit to a lie, greater courage is required not to commit one.

(Tancinco may be reached at law@tancinco.com or at 887 71 77 or visit her website at tancinco.weareph.com/old)