Author: tancincowp

Marian was a holder of a visitor’s visa. She travels to the United States every year and stayed no longer than one month each time except in 2008. During her 2008 visit, her former classmate in high school influenced Marian to stay in the US for a longer period. Marian’s classmate helped her file an application for extension of her visitor’s visa beyond the 6 months that was authorized to her.

Three months after filing the application, Marian unfortunately received a denial of her request for extension of stay. Thus, she left the United States a week after receiving the denial. In 2009, Marian returned to the United States again but was denied entry by the CBP inspector at the port of entry. She was forced to withdraw her application for admission to the US and instead returned on the next flight back to Manila. Marian had a traumatic experience at the airport and never attempted to return to the United States thereafter.

Last week, Marian heard about the U.S. Embassy’s new procedure for reissuance of visas without an interview. Her visa expired in December 2010 and she wants to renew her visa under the new program of the U.S. Embassy. She wants to travel back to the U.S. to visit her brother who just suffered a stroke. Will Marian be able to obtain a renewal of her passport under the Visa Re-issuance Program? What are her chances of having her visa renewed?

“Dropboxing” the Passport

Many years back, the nonimmigrant visa unit of the U.S. Embassy in Manila had a process of renewing the expiring non-immigrant visas through a process known as “dropbox”.  This process was actually a visa re-issuance without undergoing an interview. Later, however, the heightened security requirements on all visa applicants plus the fact that Manila was classified as a “high-fraud” post, this practice of ‘dropboxing’ was suspended.

Early this month, a press release was issued by the U.S. Embassy in Manila regarding the establishment of a Visa Re-issuance Program (VRP).  While this new program is somewhat similar to the former process of ‘dropboxing’ to renew the visas, the VRP is different in many ways.

Renewing Under the VRP

The Visa Reissuance Program (VRP) expedites visa renewals for Filipino visa applicants who have previously been issued multiple entry (B1/B2 tourist) visas to the United States valid for five (5) or ten (10) years.  This is great news for qualified Philippine visa renewal applicants because these applicants will be given priority appointment dates. An interview with a consular officer will not normally be needed.  Applicants will only need to pay the regular visa fee of $140, submit Form DS-160 with their valid passport and 2 photos, and then schedule a VRP appointment, where they will have their application screened and have their fingerprints taken.  Once completed, applicants can expect to receive their passport with a new U.S. visa within one week of the successful application.

The VRP appointment to be made by the applicant will generally be for security clearance. There is an important reminder that is stated in the press release of the U.S. Embassy that the consular officer reserves the right to interview an applicant. This means that not all those taking advantage of the VRP will be relieved of the regular interview process. If the consular officer decides to interview, the applicant will be contacted two days prior to the appointment date.

Applicants With Past Visa Violations

The consular guidance provides eligibility requirements in the form of questions. An applicant for re-issuance must answer “yes” to all nine (9) questions. Most of the questions are general in nature but what is important to note are questions relating to “inadmissibility”. These are question numbers 5 through 8.

Nothwithstanding a grant of an extension of stay or change of status, an applicant is disqualified from using the VRP if there is a prior stay of more than six months in the U.S. This extended stay, even if it is legal, requires a determination of whether or not the applicant engaged in an activity that is beyond the purpose of prior admissions. The consular officer is bound to determine if there was any unauthorized activity while the applicant was in the United States for those periods exceeding six months.

Being refused a visa in the last twelve months is also a disqualification ground under the VRP. The expedited procedure for renewal applies to those whose visas expired within the last twelve months or whose visas are expiring. If there was a prior application for renewal after it expired and this application was denied, the applicant may not take advantage of the VRP. To be disqualified from the VRP procedure, the guidance provides that the visa refusal happened within the last twelve months. If the refusal happened more than a year ago, the applicant may apply under the VRP and if an interview is required the applicant shall be notified of the interview.

“Airport to airport” or expedited removal at the port of entry is not specifically stated in the list of eligibility requirements. There are varied reasons why a traveler is sent back to Manila upon entry at the airport. One common reason is the “immigrant intent” or prior visa violation. When a visitor visa holder, for instance, is discovered to have worked as a “caregiver” while in the United States, this will be ground for the inspector to cancel the visitor visa and order the traveler back to Manila. Once the visitor visa is cancelled, renewing it under the VRP is not an option. The VRP is for those whose visas are expiring or had expired within the last year. It does not apply to cancelled visas.

Regular Processing is An Option

Any periods of visa overstay in the U.S. or issuance of expedited removal orders may disqualify applicants from using the program. In the given case of Marian, she is definitely not qualified because she stayed for more than six months in the U.S. and her visa was cancelled after she tried to re-enter the United States.

A disqualification to renew under the VRP does not mean that the renewal of a visitor visa is going to be denied. It just means that the applicant has to undergo the regular process of an interview with the consular officer on the merits of the application. Whether or not this is going to be renewed will depend on each particular case.

The VRP program is a welcome development and hopefully Filipino travelers with  nonimmigrant visas will benefit from this efficient and expedited process. Those who may not renew under the VRP should prepare well for the application under the regular process and if there are no prior immigration violations the likelihood of renewal is increased.

(Tancinco may be reached at law@tancinco.com or at 877 7177 or 721 1963)

In June 2011, the U.S. Department of Justice announced the indictment of a Maryland couple on charges that they held a Filipina domestic worker in servitude.  The couple lured the victim who was impoverished, uneducated and mother of 8 children by using false promises of a salary that would support the victim’s children in the Philippines. The indictment document reveals that the couple “procured a fraudulent visa to allow the victim to enter the United States; confiscated the victims documents after she arrived; and compelled her labor for 13 hours a day over a period of 10 years, using threats, assaults, withholding of pay an a peonage contract to coerce the victim’s continued service.”

This Filipina who is identified only as “T.E.” successfully escaped from the 10 years of abuse by her U.S. employer.  The court records reveal that she also tried to escape in 2002. Her employer threatened her with arrest if she did not return. Because of fear, she was compelled to return to her abusive employers. Upon her return, the employer threatened to shoot her if she tried to run again. Indictment papers also reveal that the employer had hit, pinched and poked her with knives. Finally, in 2009, she escaped and never returned.

The indicted couple will stand trial. If convicted, the defendants each face a maximum sentence of up to 50 years in prison and $250,000 in fines.

“T.E.” is a permanent resident and obtained her green card by marrying her employer’s brother who is suffering from diabetes and dementia and required extensive care. The employer couple is also charged with immigration violations.

The case of T.E. is a classic case of human trafficking. The Department of Justice has heightened its efforts to locate victims of human trafficking and prosecute perpetrators.

Undocumented Domestic Workers

Aside from the US Department of Justice, the U.S. Department of Homeland Security also announced its change of policy for the protection of abused domestic workers of diplomats.

Diplomats, consular officers, foreign government offices and international organizations are allowed to apply visas for their domestic workers. They are issued either A3 or G5 visas. In cases where the employer threatens the domestic workers who claim abuses and are threatened with deportation, these workers may avail of a relief of “deferred action”. Depending on the circumstances of their case, they may also avail of the nonimmigrant “T” visa.

Considering that most of the domestic helpers are strangers to their new environment, they oftentimes find it difficult to assert their rights and bear all the hardships they face.

Unlike in the case of private employers such as the Maryland couple, a domestic helper of a diplomat usually does not have redress against his employer. Diplomats are immune from criminal, civil and administrative suits from all courts of the United States and its states under the Vienna Convention on Diplomatic Relations. This is what actually happened in the 2008 case of Marichu Baoanan who claimed abuse in the hands of her employer, then Philippine Ambassador Baja, who was relieved of liability under diplomatic immunity, among other reasons. The federal lawsuit against the ambassador did not prosper.

Domestic helpers of foreign representatives in the United States may find it difficult, if not legally impossible, to file lawsuits against their employers. Still they are  entitled to apply for the nonimmigrant “T” visa and assist in the federal authorities’ investigation. This visa will allow them to stay in United States while investigation is being conducted. There is also an opportunity to apply for an immigrant visa after a few years.

Asserting Rights of Victims of Human Trafficking

Domestic workers are a critical need for most families who can afford to have one. They take care of our homes, parents and children; and, are entitled to assert their basic workplace rights. Most employers treat their workers fairly. But for employers who are perpetrators of human trafficking and are abusive, government prosecutions are a reminder that domestic workers are entitled to protections. Just like any ordinary employee, domestic workers should not tolerate verbal, physical or emotional abuses.

What makes it more difficult for domestic workers is the threat to their immigration status in addition to their lack of familiarity with the English language and how the U.S. justice system works. Just like T.E., most of these workers are head of households and are supporting their families back home. Hence, when faced with an abusive employer, they should be encouraged to assert their rights especially now that the administration has changed its policies and provided relief to protect them from being removed from the United States. Availing of the “T” visa or deferred action may be a challenged but it is a solution that will may free them from abuse and uphold their human dignity.

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