Author: tancincowp

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Immigration Round Table

DUI Conviction In Itself Is Not a Crime of Moral Turpitude

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Dear Atty. Lou,

I petitioned my husband for a green card last year. Two months ago, he was charged with Driving Under the Influence of Alcohol. He has a hearing soon and I am afraid that he will be deported if gets convicted. I am pregnant right now and I cannot afford to lose him.

Josephine

Dear Josephine,

Under current law, an individual who is charged with a crime of moral turpitude within five years from the time of his admission to the United States may be removed or subject to deportation. In determining whether the offense charged is a crime of moral turpitude, the specific statute defining the crime is analyzed whether or not it has the element of “knowledge”.

In one case decided by the Board of Immigration Appeals, the conviction was for an aggravated DUI, and reviewing the statute in the State where it was committed, it was determined that the statute required a showing that the defendant drove under the influence, knowing that his driver’s license has been suspended, cancelled, revoked or refused. Here, the DUI is a ground for removal. But note in another case that was also decided by the Board, it also found simple DUI as not morally reprehensible because it was a regulatory offense that required no knowledge or culpable mental state, hence, may not be a ground for deportation.

It is difficult to determine whether your spouse’s case will result in deportation. If it is a case of simple DUI, then it should not be a serious concern for you. There is one controversial bill pending in Congress now and which was introduced in January 2012 that might adversely affect individuals who are without lawful status or non-U.S. citizens charged with Driving Under the Influence. This is called the Scott Gardner Act or the H.R. 3808 where the local police may be authorized to detain non-immigrants who are unlawfully residing in the United States and are caught driving under the influence of alcohol. The state or local enforcement officer may verify the individual’s status and take into custody for federal transfer an individual who is unlawfully in the United States.

This bill is currently being considered and hopefully it will not be passed into law. Just like the “secure communities” the states and localities will be forced to engage in immigration enforcement. The police officers enforcing this law will foster abuse and racial profiling which will result in the distrust of local law enforcement.

Since your husband was admitted as a green card for two years, it will be better that he should be more careful next time and avoid trouble with the law to avoid harsh immigration consequences.

I hope this information is helpful.

Atty. Lou

(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808 or at 1 888 930 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com).

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Updates

DOL Amends H-2B Regulations; Schedules Informational Webinars to Explain

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On February 21, 2012, the Department of Labor published a final rule
that amends certain H-2B regulations. The rule changes the process by
which certification of temporary employment of non-agricultural
nonimmigrant workers. This rule additionally creates regulations that
provide enhanced enforcement of employers that fail to meet their
obligations. Finally, changes have been made to Form ETA 9142, the
Application for Temporary Employment Certification. This final rule will
become effective on April 23, 2012.

In order to ensure public understanding of these substantial changes to
the H-2B nonimmigrant program, the Department of Labor is holding a
series of webinars and a public briefing, in which they will educate
stakeholders, program users and others of the changes to the H-2B
program. The sessions will take place in March and early April. More
information can be found at the Department of Labor website.

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Updates

New Report Details Reasons Why Unauthorized Immigrants Stay in U.S. Despite Restrictive State and Local Laws

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According to a new report, state- and local-based immigration
enforcement laws are not leading to unauthorized immigrants leaving the
United States. Instead, the report notes, the laws are simply driving
such immigrants from one area to another, rather than from the United
States. The report goes on to report that these regulations additionally
lead to isolate unauthorized immigrants from the communities in which
they live and from local law enforcement, due to fear of retribution or
punishment for their immigrant status.

The report, which was published by the Center for American Progress,
delineates the main reasons that undocumented immigrants remain in the
United States. According to the report authors, most undocumented
immigrants have been in the U.S. for ten years or more and live in
family units with children. They are well settled in the U.S.; this,
they believe, is where they are making their lives. Additionally, the
cost to return home is too expensive and the reasons for initially
immigrating to the U.S. – a lack of economic opportunity in their home
country – further strengthen these undocumented immigrants’ resolve to
remain in the U .S., even in the face of ever-restrictive immigration
regulations.

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Updates

USCIS Provides Updated Number of Cap-subject H-2B Visas Approved for Fiscal Year 2012

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USCIS has published an update of the number of cap-subject H-2B visas approved for the first and second half of Fiscal Year 2012. According to USCIS, a total of 29,779 beneficiaries have been approved for the first half of Fiscal year 2012, with 6,416 beneficiaries pending. 7,030 beneficiaries have been approved for the second half of Fiscal Year 2012, with 2,007 beneficiaries pending. These numbers were last updated on February 17, 2012.

Congressionally-based legislation limits the amount of H-2B visas provided per fiscal year to a total of 66,000, with 33,000 allocated for employment for the first half of the fiscal year and 33,000 allocated for employment for the second half of the fiscal year. Unused numbers from the first half of the fiscal year are made available for use by employers seeking H-2B workers during the second half of the year. These numbers do not, however, carry over from one fiscal year to another. 

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Updates

USCIS Reminds Applicants that the I-601 Provisional Waiver Is Not in Effect

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USCIS is currently investigating the potential of making changes that would allow some immediate relatives of U.S. citizens to receive a provisional waiver of the unlawful presence bars before leaving the U.S. This procedural change would apply to spouses, children or parents of U.S. citizens who are able to demonstrate extreme hardship.

USCIS reminds applicants that these procedures are not yet in effect; they will not be available to potential applicants until a final rule is published in the Federal Register that specifies the specific effective date. USCIS is currently planning to publish a notice of proposed rulemaking sometime in the next few months. An open comment period will then be activated, in which the public can comment on the proposed rulemaking. Please note that any applications requesting this new process will be rejected and the application package and related fees will be returned to the applicant.

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Updates

Self Check Program for Employment Eligibility Verification Now Available Nationwide

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USCIS announced this month that its Self Check service will now be
available nationwide. Self Check, a free online service of E-Verify,
allows workers to check their own employment eligibility status. The
service is now available in all 50 states as well as Washington, DC,
Guam, Puerto Rico, the US Virgin Islands and the Commonwealth of
Northern Mariana Islands.

“We are pleased to complete, ahead of schedule, our expansion of this
important tool for employees,” said Alejandro Mayorkas, Director, USCIS.
“Since our initial launch in March, approximately 67,000 people have
used Self Check and we anticipate that participation will dramatically
increase with service now available to individuals across the country.”

Self Check was developed by the Department of Homeland Security, in
partnership with the Social Security Administration. Individuals can
check their own employment eligibility status online at
http://www.uscis.gov/selfcheck and can obtain guidance on how to correct
their records, if mistaken. The service is offered directly to workers
and is available in both English and Spanish.

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Global Pinoy

Inter-Country Adoption: Giving Permanent Homes Abroad for Abandoned Children

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Many immigrants have indicated their desire to adopt either a child who is a relative or an orphan. If the adoptee is a relative he may be classified as an immediate relative child. For this type of relative child adoption, immigration law requires two years of legal and physical custody requirement from the adoptive parent before an immigrant visa is issued to the child. Prospective adoptive parents who are not able to meet the two years physical presence requirement may want to consider adopting a child under the inter-country adoption if they meet the eligibility requirements.

Inter-Country Adoption

Both the Philippines and the United States are signatories to the May 29, 1993 Hague Adoption Convention on the Protection of Children and Co-operation in Respect to Inter-Country Adoption (Hague Adoption Convention). While the United States signed this treaty in 1994, it took effect for the United States only on April 1, 2008.
    
Central authorities are created for each country signatory to the Hague Adoption Convention. The United States Department of State and the Philippines Inter-Country Adoption Board (ICAB) serve as central authorities for inter-country adoptions.

Different Rules Apply

Prior to 2008, identification and adoption of the orphan child are the first steps toward obtaining an immigrant visa for the orphan or abandoned child. With the Hague Convention or post April 2008, the rules changed. Adopting the child or obtaining legal custody is now the last step. If for any reason the adoption was done first prior to filing the immigration petition, the adoption must be rescinded and the petitioning adoptive parent must begin the process of inter-country adoption again. Orphan adoptions prior to 2008 are not covered by the Hague Adoption Convention and are not to be rescinded.

The Department of State emphasizes that the convention procedures “front load” the immigration process.  The eligibility of the child or that of the adoptive parent must be determined first before an immigrant visa is issued and adoption petition is filed and the decree of adoption obtained. This is only done through a Hague accredited agency.

Caveats

Except for relative adoptions, the adoptive parent may not initially choose the child to be adopted and there is a strict prohibition not to contact the child.

When a prospective adoptive parent makes a decision to adopt, they should be warned not to go directly to ICAB-Philippines. Neither should the prospective parent contact an orphanage or adoption agency in the Philippines.

The Process

The sequence of steps to be taken is critical in the adoption and immigration process. A prospective adoptive parent should first contact a Hague accredited agency in the United States, which is also a recognized agency of ICAB-Philippines. The prospective adoptive parent from this recognized agency must obtain a home study report. Thereafter a USCIS Form I-800A is filed with the USCIS Chicago Lockbox address.

As soon as the I-800A is approved, a copy of the approval notice is sent to the ICAB who will then refer an eligible child for adoption. The prospective parent will decide from there whether to accept the child. Another form I-800 is filed if the prospective parent accepts the ICAB referral. If approved, the U.S. Consular officer notifies the ICAB with an Article 5 Letter that the prospective adoptive parent may proceed to obtain an adoption or custody decree. As soon as the Article 5 letter is released, ICAB will issue a temporary legal custody in accordance with the Hague Adoption Convention. This legal custody document and all other supporting documents will be the basis for the issuance of an IH-3 or IH-4 immigrant visa. When the child is issued the visa, the adoption can be completed in the United States.

Number of Visas Issued to Adopted Children

In 2011, the U.S. Department of State reported that there were 9,300 immigrant visas issued to children adopted by U.S. citizen parents. Of these numbers, 2,700 were processed under the Hague Convention. Only 230 adopted children from the Philippines were issued visas compared to 2,589 from China and 1,727 from Ethiopia.

Despite the number of children available for adoption and the fact that there are a significant number of Filipino American prospective parents interested in adopting children of their own identity and culture, only a few Filipino adoptees are issued visas yearly. The seemingly complex process is usually what bars them from initiating the process. The complication of obtaining a U.S. immigrant visa after much expense in undergoing the adoption process may be softened by being aware of the “front loaded” process under the Hague Adoption Convention.

Atty Bernadette Abejo, Executive Director of ICAB, in a message recently sent through GMA Pinoy TV program’s Pusong Pinoy Sa Amerika, encourages prospective adoptive parents who are Filipino Americans to do it the right and legal way. The adoption process under the Hague Adoption Convention establishes a way of providing much-needed permanent homes abroad for many of our orphan or abandoned children.

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

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Updates

US Embassy in London Urges Applicants to Apply for Visas Now for Summer Travel

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The US Embassy in London, UK, has commented that visa services at that
location will be limited during July and August 2012 for all
nonimmigrant visa categories. This is due to the Olympics taking place
in London during that time. Applicants are encouraged to apply for visas
during the spring and early summer for a stronger possibility of an
appointment; availability of appointments cannot be guaranteed during
July and August. The Embassy has opened up its appointment calendar
through the end of June to facilitate this.

Please note that travelers who plan on entering the United States
without a visa under the Visa Waiver Program (by air or sea) who do not
have travel authorization approval under the Electronic System for
Travel Authorization are urged to register now to travel during the
summer. If registration is denied, these travelers will be required to
obtain visas.

Categories
Updates

Department of Labor to Publish Final Rule Regarding H-2B Worker Program

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The Department of Labor (DOL) will publish its final rule regarding the
non-agricultural employment of H-2B nonimmigrants on February 22, 2012.
In this final rule, DOL will amend its regulations regarding the
certification of employment of nonimmigrants working in temporary or
seasonal non-agricultural positions in the United States, as well as the
enforcement of the obligations of employers of these nonimmigrant
workers.

The final rule amends the process by which employers obtain temporary
labor certifications from DOL for use in petitioning the Department of
Homeland Security for nonimmigrant H-2B workers. In addition, it
improves the levels of protections for both U.S. and nonimmigrant
workers under the H-2B program. This rule will be effective 60 days
after its publication in the Federal Register.