Author: tancincowp

One who has violated the law should suffer the consequences of his actions. The victim of the offense should be compensated and the offender should be penalized.  But have you heard of a victim being equally penalized with the offender?

This is what happened to hundreds of Filipino teachers in Maryland.  The teachers were the victims of their employer’s regulation violations of the working visa program. Yet, these Filipino teachers are the ones suffering the consequences of those violations by the employer.

From 2005 until 2009, Filipino teachers were recruited to work for the Prince George County Public Schools (PGCPS) in Maryland. Most of these teachers paid more than $10,000 to the recruitment agency to cover recruitment costs which included, among others, cost for their working visas. Having successfully complied with all the requirements, these teachers arrived in the US and were able to work. Many who were recruited earlier had already been able to obtain their green cards. Unfortunately, others are still on their temporary working visas.

After an investigation, the U.S. Department of Labor came out with their findings against the employer penalizing the latter for failure to comply with wage requirements as well as various violations of the conditions of the visa issuance.  The employer and interested parties were given 15 days to appeal the decision dated April 4, 2011.  The employer did file an appeal; and, five teachers also filed their opposition to the findings.

On July 7, 2011 the Department of Labor issued a public statement informing the public that an ‘agreement’ was made where the employer agreed to reimburse all teachers for their back wages and cost of their visa petitions. The assessment was a total of  $4,222,146 in back wages for 1044 teachers.  Included in the agreement is a “debarment” against the employer to prohibit them from (1) filing new working visa petitions, (2) renewing visa petitions that are expiring; and (3) filing immigrant visa petitions for their employees.

As a result of the agreement, each teacher will receive approximately $4,000. Those teachers who already have their green cards are not concerned with the penalty of debarment. Unfortunately, many are still waiting for their green cards.  After teaching for several years, those who have not been approved for their green cards will now be terminated at the expiration of their work visas. Since the agreement was reached on July 7, 2011 termination letters have already been sent to those whose visas are expiring the months of July and August 2011. Unless there is a change of status, the affected teachers stand to lose their valid immigration status.

Debarment is a penalty imposed where the employer is barred from filing immigrant and nonimmigrant visa petitions if there are violations of H1B or labor certification program requirements. While debarment is intended by policy to punish the employer, it has an adverse effect on affected employees. This means that the employees must act quickly to find new employers, change to another nonimmigrant status or decide to leave the United States.

The visas for those teachers who are still nonimmigrant will eventually expire at a time certain. Hundreds of these H1B visa teachers will lose their status in the next two years.

While they entered as H1B visa holders, most of these teachers’ hope was to eventually become immigrants like their predecessors. Giving a finite date for them to leave and depriving them the opportunity to extend their visas or obtain the green card because of the debarment of an employer is an unfair result on the employees caused by the employer’s misdeeds. If the employer had not violated the H1B regulations and wage conditions, these teachers will not be facing the effects of debarment.  Hundreds of these teachers are now facing this distress.

Who deserves to be punished?

At the time when former President Bush signed the No Child Left Behind Law, highly qualified teachers were hired to work in critical areas of math, science and special education. In the Prince George County Public Schools (PGCPS) of Maryland, most of these outstanding teachers were recruited from the Philippines.

The recruiters from the Philippines earned their recruitment fees which amounted to no less than $10,000 per teacher. The PGCPS was able to support its No Child Left Behind Program by hiring qualified foreign nationals. Where there was a shortage of teachers, the recruited teachers filled up the positions and diligently practiced their professions both in non-critical and critical areas. The teachers got their visas for themselves and their families.  Unfortunately, with news of the DOL’s findings and the agreement reached between PGCPS and the DOL, the affected teachers were the sacrificial lambs and must go if their visas are expiring.

While each teacher is expecting to receive approximately $4,000 in back wages and reimbursements from the $4.3 million assessment against PGCPS, this money becomes insignificant compared to the loss of their US jobs.

Teachers Are Not Lawbreakers

The agreement reached between the DOL and the PGCPS appear not to have included the affected teachers during the negotiation. Instead of the agreement, hearing on the matter should have been conducted to prove that the acts of PGCPS did not amount to a “willful” violation warranting a debarment. At the very least, the teachers who have served the children of PGCPS for many years must be exempt from the ‘debarment’ and should be allowed the opportunity to renew their visas. If not, prosecutorial discretion on the part of the Department of Homeland Security must be favorably exercised. For after all the teachers are the victims and not the lawbreakers.

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

“I’m done running. I’m exhausted. I don’t want that life (of an undocumented) anymore.” This is the outburst of Jose Antonio Vargas in his lengthy confession entitled ‘Life as an Undocumented Immigrant” published with the New York Times on June 22, 2011.

Pulitzer prize winner Jose Vargas admitted in his article that he is an undocumented immigrant since he was 12 years old.  After 18 years, he courageously admitted not only his real status as an undocumented but also how he entered the US and engaged in varying fraudulent schemes.

Jose committed the following fraud and misrepresentations. First, a “cayote” smuggled him into the United States using a passport and a visa, which did not belong to him. His mother introduced him to a man who he addressed as “uncle” and who accompanied him to the United States.  Upon arrival in the United States, his uncle disappeared with his passport. His grandparents who are both US citizens took physical custody of him.

Second, as Jose was growing up he used a fraudulent “green card” as proof of his immigration status.

Third, Jose used a fake student visa stamped on his Philippine passport, which he used to obtain a genuine social security number.

Fourth, Jose claimed US citizenship on his applications for employment.

Not an Ordinary Undocumented Youth

While varying schemes were used, Jose should not be held accountable for the errors of judgment of his mother and grandfather. As a child, he was an innocent victim of the fraud. He never had any participation in the decision to come to the U.S. as an undocumented.  What happened to Jose remains true to tens of thousands of minors who are taken to the U.S. by parents who decide to stay in the U.S. even after their authorized stay expires. These are parents who either never bother to take steps to legalize the status of their children or simply have no legal options to legalize.

To provide for a better future for the children is oftentimes the parents’ reason for their decision to take their children to the U.S. and allow their visas to expire.  But the reverse happens to most of these children when they finish their education.

Usually, the harsh reality of being a “TNT” (Tago ng Tago, undocumented) manifests before they graduate from high school. When they begin their path to independence, they usually obtain driver licenses. This is what happened to Jose. At age 16, he went to the Department of Motor Vehicles to obtain a license just to be told that he possesses a fake green card. As an intelligent child, Jose initially was concerned but did not stop him from achieving his dream.

With his strong determination to succeed coupled with the support of his family and network of friends, he was able to finish college at the San Francisco State University.  He was able to intern and be employed as a reporter for major news publications like the San Francisco Chronicle, Washington Post and Harrington Post. And to top it all, he was also part of the team that received a Pulitzer Prize making him the second Filipino next to Carlos P. Romulo to receive this prestigious award.

After four years in the US, Jose became cognizant of his undocumented status and his subsequent misrepresentations.  But Jose was never himself. He was conflicted as he revealed in his confession – “I knew what I was doing now. I knew it wasn’t right. But what was I supposed to do?”

Jose expresses clearly what he wanted to impart, “ I learned that no amount of professional success would solve my problems or ease the sense of loss and displacement I felt.” Jose and the thousands of undocumented students whose decision to come to the United States was not their own are facing personal dilemmas. They try hard to be part of the mainstream U.S., acting like they are true Americans, devoting their time and energy to education and their professions. In the end, they are still going to be sent back to their true homeland after a removal or the court renders a deportation order.

Should Jose Be Deported?

The facts are clear that Jose is in violation of immigration law and probably criminal law. If his what he said in his confession are true, there is no question that he is deportable under the law. However, he is entitled to due process and has a right to a hearing. He shall be provided an opportunity to present waivers and other relief that may be available to prevent him from being deported.

While there are approximately 11 million undocumented immigrants most of these individuals are not all detrimental to the United States. In fact, the undocumented youth and the generation of Jose are mostly brilliant and hardworking. They represent the educated workforce needed for the US to compete in a global economy. They are pursuing the American dream immersing themselves into a nation that unfortunately undervalues their worth.

Instead of penalizing individuals like Jose, the Obama Administration should make good his promise of a comprehensive immigration reform law which includes the DREAM Act (Development, Relief and Education for Alien Minors) that shall provide a pathway to citizenship to undocumented youth .

Jose Vargas is a courageous man. It did not matter anymore to him that he is a Pulitzer Prize winner and a very successful journalist. He is remorseful and ready for the consequences of his actions. Having publicly revealed his story, he did not wish solely to attain legalization for himself. Jose in his confession gave a human story and a voice to tens of thousands of undocumented youth who all deserve a second chance. He should not be deported.

(Tancinco may be reached at law@tancinco.com or at 02 887 7177 or 02 721 1962)