Author: tancincowp

Paolo was only six months old when he arrived in California with his parents. After his visitor’s visa expired, Paolo’s parents decided that they continue to stay in unlawful status. Paolo practically grew up in the United States and did not learn about his immigration status until he was 16 years old. When he discovered that he was undocumented, Paolo stopped studying and instead worked, without authorization, as a caregiver for a family friend. In the meantime, Paolo’s parents were divorced and Paolo was left to the care of his Uncle Ramon.

After hearing of a “deferred action” initiative for young immigrants, his Uncle Ramon sought legal assistance in order that Paolo may obtain a work permit and be issued a proper identification. On August 15, 2012, Paolo was told that the deferred action is only temporary in nature that will last for only for two years. Also, when he applies for deferred action, the U.S. Citizenship and Immigration Services will have access to all his biographic and other personal information and there is uncertainty whether this information will be used in the future against him.  Paolo still insists on requesting for deferred action. He is willing to take the opportunity to be able to get at least an identification document and a social security number.  He plans to pursue his college education as soon as he gets “deferred action.”

Thousands of undocumented young immigrants feel the same way as Paolo. Despite uncertainties of future risks of applying for deferred action, they are determined to take advantage of Obama’s new initiative. On the first day of filing for consideration for deferred action, thousands of young immigrants who are out of status lined up at the offices of various advocacy organizations to attend workshops on  “deferred action”. The U.S. Citizenship and Immigration Services began accepting requests on August 15, 2012 and it is expected that there would approximately be one million young undocumented students who will file requests for deferred action.

The New Initiative: DACA

On June 15, 2012 President Obama announced his immigration initiative on deferred action. To distinguish the implementation of deferred action to the benefits of the proposed DREAM Act for undocumented young immigrants, the U.S. Department of Homeland Security introduced a new acronym- D.A.C.A. referring to the Deferred Action for Childhood Arrivals (DACA).
 
DACA helps a large population of young undocumented immigrants who came to the U.S. under the age of 16 acquire “deferred action” and obtain employment authorization document. To be eligible for DACA, an individual should have been under the age of 31 as of June 15, 2012 and should have come into the U.S. before reaching his 16th birthday.  The Filipino advocate for the DREAM Act, Jose Antonio Vargas, an award-winning journalist, is unfortunately disqualified because he just turned 31 prior to June 15, 2012. However, those who turned 31 years old after June 15, 2012 are still eligible.

Not for New Arrivals

To be considered for DACA, there must be proof of physical presence in the United States for five years prior to June 15, 2012.  The young immigrant should have continuously resided in the United States since June 15, 2007, up to the present time. Hence, those who entered after June 15, 2007 shall be disqualified from DACA. Recently arrived young immigrants may not apply for DACA. Those who plan to travel and apply for DACA for their children should be aware of this five-year physical presence requirement and are discouraged from abandoning their children abroad to become TNTs.

Must be”TNT” to Qualify

DACA is only for those who are undocumented; either they entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012. Those children who are still in valid nonimmigrant status are not eligible. One parent of a child in valid “M” student status asked whether his child would qualify for DACA. His child wants to apply for DACA and a work permit. He was told that DACA is only for undocumented and since his child has a valid immigration status, he may not qualify for DACA.

Uncertainty of the Program

It is clear based on several pronouncements by the Department of Homeland Security that DACA is not an amnesty or a path to citizenship. There are only two things that a young immigrant may take out of this DACA program: (1) reprieve from deportation and (2) work permit or employment authorization. It is also a temporary fix for only two years and if there is change of administration, there is a possibility of changes in the DACA program. Nevertheless, like Paolo, thousands of young immigrants are willing to take advantage of DACA.  They perceived DACA as a small window that allows them to live, even on a temporary basis, without fear of deportation, harassment or exploitation and alleviate, even a little, the difficulties they face as undocumented immigrants. In essence it provides them that sense of security that that they will not have to face being torn away from the land that they know in their hearts is also their home. And for these reasons, they are willing to take the risk involve should there be changes in policy in the future.

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

A child of a United States citizen (USC) or lawful permanent resident (LPR) may derive immigration benefit as long as the legal relationship between the child and the USC/LPR parent exists. What if there is no relationship with the child? How does one establish relationship that will allow a USC/LPR to petition a child who is not related to him by blood?

To address this issue, we examine the case of one of our readers who emailed the following interesting inquiry:

“I met a wonderful woman while I was on vacation in the Philippines. In the few months that we were together, I fell in love with her. Upon my return to the States, she informed me that she is pregnant and that I was the father of the child. I returned to the Philippines after the birth of the child and acknowledged the child as my own in his birth certificate. I proceeded to the U.S. Embassy in Manila to register my child as a U.S. citizen. I was told to take the DNA test, which I did. Unfortunately, the DNA tests showed negative results meaning that I am not the biological father of the child. I left for the United States and returned after a few years to the Philippines to visit the child. I felt bad for the child because he seemed to be neglected by his mother. I want to petition the child even if he is not my own child. What should I do to be able to give this child a better future? Thank you very much and God bless your heart. – Anonymous”   

Proving Parent Child Relationship

Generally, the birth certificate is the sole document that proves the relationship between the parent and the child. In filing immigration petitions, a parent submits proof of his citizenship or resident status and the birth certificate of the child. To prove the legitimate status of the child, a marriage certificate of the parents is usually submitted.

Since the birth certificate is a strong proof of the relationship between the parent and the child, there are some instances where an individual, not the real parent, would simply have his name recorded as the “parent” on the birth certificate, in the erroneous belief that this action creates the parent-child relationship. This often happens in adopted children cases where a child’s birth certificate is made out to show the name of the adopting individual as the “parent” (instead of the natural/birth parent) so that such individual could “adopt” the child without necessity of securing a judicial decree of adoption. This is what is commonly known as a “simulated” birth certificate, the adoptive parent is declared to be the parent on the birth certificate despite the lack of judicial authority to do so.

It must be clear that in immigration petitions, “simulated birth certificates” are not acceptable proof of parent-child relationship. As soon as an immigration examiner or consular officer is put on notice about facts showing that the reported parents are not the biological parents, the petition is denied for lack of legal relationship.

Despite the strong evidentiary nature of birth certificates to show parental relationship, therefore, its submission is not enough and other factors are taken into account before immigration petitions for children are approved.

To illustrate, a grandparent who obtained a birth certificate naming him/her as a “parent” on behalf of a grandchild, would circumvent the immigration process meant for petitioning direct issues/children and would not be allowed. Factors that raise red flags on the simulated nature of the birth certificate could be the age of the grandparent at the time of the birth of the child, the age gap between the siblings and the child claimed to be the grandparent’s own child, the age difference between the grandparent and the child, as well as other similar circumstances.

DNA Tests

There is nothing in the regulations that require mandatory DNA testing to prove a parent-child relationship. The consular officers and the immigration examiners exercise their discretion in cases where there are doubts on the parent-child relationship. Most high fraud posts, which include the U.S. Embassy in Manila, often require DNA testing especially in illegitimate cases or children born out of wedlock.

This is what happened in the case of our letter writer. He was required to take the DNA test, which he did willingly and confidently. To his dismay, the child was found not to be his biological issue. Despite proof of the past romantic relationship he had with the mother of the child, the DNA test yielded negative results. These results are conclusive as far as the U.S. Embassy is concerned and is determinative of the absence of the parent-child relationship.

Petitioning A Non-Biological Child

One expects the reaction of an individual, made to believe he was the biological father of a child when in fact he was not, would be that of outrage. Here, our letter writer decided to be magnanimous and instead opted to try to petition this child.

There are two ways to petition a non-biological child. One way is through the adoption process. After 2008, adoption of orphans is governed by the Hague Convention on Adoption and generally, the child is not supposed to be “pre-identified”, meaning the child to be adopted may not be identified by the adoptive parents. Instead, the Inter Country Adoption Board will take on this role of identifying who will be adopted. If inter-country adoption is not applicable, the child must be domestically petitioned as a “relative” child, in which case, the adoptive parent must show at lease two years of physical presence in the Philippines and at lease two years of legal custody over the adopted child before the immigration petition could be processed.

The other way to petition a non-biological child is through the stepchild petitioning process. This is not applicable to all non-biological children.  A U.S. citizen may petition a stepchild only if the biological mother and the U.S. citizen enters into a valid and good faith marriage before the stepchild turns 18 years old. In this case, the U.S. citizen may petition the child as long as there is proof of the marital relationship with the mother.

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