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Global Pinoy

Warrior Moms in Courtroom Dramas

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Mama Laura, 85 years old, almost passed out while testifying on the witness stand. Her son Benito has been her caregiver for the last ten years and the US Department of Homeland Security wants him deported.  All of Mama Laura’s children are in the US, but only Benito is facing deportation proceedings. He entered with an assumed name and was found to have committed fraud and misrepresentation. This initially resulted in the denial of the petition filed by Mama Laura.

Before that hearing, Mama Laura was just quiet and was informed that the chances of her son winning the case would not be good. Benito has no immediate family in the US except his mother; and, he was not able to establish enough equity because he spent the last decade taking care of his mom.

Mama Laura suffers from diabetes and requires regular treatment. She needs her medical insurance in order to sustain the cost of her medical treatment. If she goes back to Manila, she will lose her medical insurance and will not be able to afford the high cost of medical treatment.

While Benito was testifying in court in his defense, Mama Laura was weeping and praying with her rosary in her hands.  When it was her turn to testify as a witness, she suddenly burst into tears as she was pleading for compassion and mercy not to deport her son.  She explained that if Benito were ordered deported to the Philippines, she would go with him. As the sight of an 85-year old mother weeping in the witness stand became a deplorable sight, Benito suddenly screamed from where he was seated. He panicked and yelled for his Mom to step down the witness stand.  He blamed himself for making her mother feel that way. He exhibited remorse for entering the US with an assumed name and asked the Judge to just render a decision. The immigration judge called for a recess until all the parties calmed down. Later on the case proceeded and Mama Laura insisted that she continue her testimony.  She said, “I cannot afford to be without my child by my side when I die. I may have my other children with me but knowing that I have one child who is alone in the Philippines will be unbearable for me. If this court orders my son deported, and since I cannot bear to live without one of my children away from me, I shall be deported with him.” The judge eventually rendered a decision dismissing the deportation proceedings and allowing Benito the chance to stay in the US. Two months later, Mama Laura died peacefully.

In another case of a mother-witness in court, Alma forced herself out of her hospital bed to testify on behalf of her spouse who is in deportation proceedings.  They have been married for ten years and they have one daughter Cherry. Their only child suffers from autism. Since Alma suffers from a debilitating disease and was given only a few months to live, she was fearful that her spouse would be sent back to the Philippines. She was wheeled to court. She testified emotionally to plead for mercy not to deport her husband for the sake of their only child. Alma courageously took the stand despite her fragile state to beg the court to give her husband a chance to stay in the US for the sake of their minor child.

In another seemingly simple case of marriage of a US citizen spouse and a foreign national, it was surprising to see an 89-year old mother go to court with his adult married son. The adult married son, Johnny, is a 55 year old Filipino national who is married to Sofia who is 60 years old. They had a good marital relationship until lately when they started quarrelling. Sofia then refused to proceed with the petition of Johnny resulting in the latter being put in deportation proceedings.  During Johnny’s hearing, Sofia was present as they had already reconciled. Mommy Elena who is 89 years old and who was in a wheel chair also went to court. She was told that her presence was not needed as this was a straightforward case of a petition by a US citizen spouse. When asked why she was there, she cried and directed her attention to Sofia. She wanted to make sure that Sofia, this time,  would not fail her son Johnny. Outside the courtroom Mommy Elena was weeping and admonishing Sofia to maintain her affection for Johnny. It was her wish that before she passed away, Johnny’s immigration status would be legalized.

The physical separation of parents from their adult children is part of the growth of the family. But when physical separation is forced through removal or deportation, the impact is severely distressing to family members and most especially to a mother. Not much convincing is required for mothers to give whatever help is needed during these times. Most would voluntarily extend their hand without being asked.

It is very amazing to witness warrior moms, especially those in their twilight years, who brave the legal storms in courtrooms in order to give defense to their children. The mothers of all these immigrants in distressed situations all manifested the extent of their love for their children. But mothers deserve our love too. Mother’s day should not just be once a year. It should be an everyday homage to the person who matters most to us. Happy Mother’s Day to my Mommy Nor and to all the courageous mothers who have sacrificed, fought for and continue to protect their children.

(Tancinco may be reached at law@tancinco.com or at 02 887 7177 or 02 721 1963)

Categories
Updates

Napolitano Announces New Immigration Index to Measure Effects of Border Security on US Residents Living at the US/Mexico Border

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Janet Napolitano, secretary of the Department of Homeland Security, has
announced a new immigration index to measure border security at the
Southwestern border of the United States in a more pertinent fashion
than such data are currently recorded and analyzed. This new index,
Napolitano says, will look beyond simple statistics of crime and will
look more deeply into environmental damage, levels of personal security
and the economic impact to U.S. residents living near the border with
Mexico.

To describe the intricacy of information that will be in the immigration
index, Napolitano described examples of data that would be collected,
including data such as “calls from hospitals to report suspected illegal
aliens, traffic accidents involving illegal aliens or narcotics
smugglers, rates of vehicle theft and numbers of abandoned vehicles,
impacts on property values, and other measures of economic activity and
environmental impacts.”

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Updates

USCIS Posts Final RFE Template for Aliens of Extraordinary Ability

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USCIS has just posted a revised final RFE template for Form I-140 E11,
the Alien of Extraordinary Ability Form. This template was updated to
incorporate stakeholder feedback received by USCIS after posting the
template in its Feedback Opportunities website section. This updated
template, USCIS says, will be posted online for a total of 10 days for
stakeholder visibility. USCIS Service Centers plan to immediately begin
using the template.

Access the template online at: http://dhsconnect.dhs.gov/uscis/news/Documents/E11%20RFE%20Template_04212011.pdf

Categories
Updates

USCIS and USPS Implement Secure Mail Initiative

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USCIS recently posted a notice informing the public that it has fully
implemented the Secure Mail Initiative (SMI). This initiative uses the
U.S. Postal Service’s (USPS) Priority Mail with Delivery Confirmation
option to deliver certain immigration documents in a secure, safe and
timely manner. This initiative was made possible through a partnership
between USCIS and USPS and enables USCIS to confirm that permanent
residence cards and documents related to travel and employment
authorization were successfully delivered to recipients.

Through the use of USPS tracking data, applicants can easily access
delivery information and stay up to date on the status of their
documents. In addition, the new initiative will enable a speedier
delivery process; on average, documents sent through priority mail will
arrive two to four business days earlier than if they were sent via
first-class mail.

Categories
Immigration Round Table

Indicators of Possible Abandonment of Permanent Resident Status

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Dear Atty. Lou,

I just wanted to inquire about departure and arrival dates law.  My mother-in-law was granted a permanent residence visa about 3 years ago and she only stayed here maybe a total of 6 – 7 months. Is there any chance that her green card would be cancelled or revoked?  She backdated her passport once, paid about $50 in the Philippines and was able to re-enter the US, isn’t it this an act of forgery?  Also just recently because she stayed in the Philippines longer than allowed. I learned that she purposely lost her passport and green card and now she received a new one and she was saying that that’s her reason why she wasn’t able to come back on time.  My question is, can it be cancelled because of the primary reason of her not fulfilling the real purpose of being a permanent resident and that is being a permanent resident which means you have to stay, work and live here?  It seems that it’s being used as a purpose of visiting only like one who is on a tourist visa- stay here for 2-3 weeks then come back in Philippines for 10-11 months.  She was also saying that there’s no record of departure because they do not stamp the passport here in the US when you leave only when you arrive basically, is this true?

I’ll appreciate your help and I just wanted to provide solid information to my wife because she is concerned that her mom will eventually lose her green card in a matter of time.  It looks like she’s circumventing the US law thinking she can get away with it every time.

Sonny

Dear Sonny,

You raise a very usual but valid concerned in regards to your mother in law’s green card. The US immigration law provides for the issuance of green card to those individuals who are permanent residence either through petition by a family member or through employment. The process of obtaining green card can be simple or very complicated depending on the basis of the application. It can also vary in time from less than a year to twenty- five years depending on the nature of the petition.

For those who are in possession of their green cards, they should use it for purposes it was issued, that is, to work and stay in the United States and to make US their permanent place of abode. In the case of your mother in law, it looks like she just wants to have in her possession the green card that was issued to her. She does not appear to have the intention of staying in the US permanently. Since her intention is just to keep her green card and not use it to live and work here, there is a very strong probability that the Customs and Border Protection (CBP) officer will most recommend the revocation of her green card upon her entry in the US. Most likely, she will be charged under INA § 212(a)(7)(A)(i)(I) after she is found to have abandoned her status.

The most obvious indicator of abandonment is a prolonged absence outside the United States exceeding one year without special authorization for re-entry. The CBP Inspector’s Field Manual (IFM) lists several other “indicators of possible abandonment of permanent resident status” including: (1) Employment abroad;  (2) Immediate family members who are not permanent residents; (3) Arrival on a charter flight where most passengers are non-residents with return passage; (4)Lack of a fixed address in the United States; and (5)failing to file U.S. income tax returns while living outside the United States or self-declaring to be a “non-resident” on U.S. tax returns.

Backdating of departure-arrival stamps on the passport is unlawful. You are right that she may be criminally liable for doing this type of action. The database of the US Department of Homeland Security is now very extensive and sophisticated that arrival and departure information may easily be verified through their programs. You may want to warn your mother in law about this and to desist from engaging in such an unlawful activity.

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, 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)

Categories
Updates

USCIS Undergoing Transformation to Electronic Environment

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USCIS is moving closer to being a fully electronic organization,
according to Alejandro Mayorkas, USCIS director. Last week, Mayorkas
announced that he wishes to transform the agency into a more
streamlined paperless service.

“We are a paper-based agency, what that means is that all of our
records are really kept in paper form and that is not very efficient.
It has implications of operations, cost efficiency and accuracy,”
Mayorkas said.

As part of this continued transformation, USCIS is currently converting
Form I-539, the Extension of Change of Status into an electronic
version and giving applicants the ability to create online accounts to
manage their immigration status.

According to Mayorkas, the agency is current undergoing a
‘transformation,’ an effort to fully modernize USCIS. USCIS has a
multi-year effort underway to move to a fully electronic environment in
which all records are maintained in electronic form. Mayorkas noted
that such a transformation would enable better access to services for
applicants and lead to major cost savings for the agency.

Categories
Updates

U.S. Army and Navy Now Allow Recruits to Start Citizenship Process during Boot Camp

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The U.S. Army and Navy are now offering recruits a way to start the
process of obtaining U.S. citizenship during basic training. This new
feature involves changing the military’s no-visitors policy during boot
camp, so that federal immigration officials can assist recruits in
obtaining citizenship. The military notes that only legal immigrants
can apply for citizenship via this route, and they must complete five
years of honorable service as part of the process.

After the terrorist attacks of September 11, 2001, then President
George W. Bush signed an executive order that would allow for a
speeding up of the citizenship process for military recruits. Prior to
this change in process, members of the military were required to serve
one year of honorable service prior to being able to apply for
citizenship.

Categories
Updates

Top Republican Calls for H-1B Reform

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In a special hearing held by the Committee on Oversight and Government
Reform, U.S. Representative Darrell Issa (R-CA) called for reform of
the H-1B Visa program. “There seems little doubt that federal policies
and regulations have played a large role in hampering growth,” said
Issa, who referred specifically to the H-1B Visa Cap in his speech.

“Five years ago, Bill Gates and many others warned of the negative
impact of strict caps on H-1B visas for technology workers on U.S.
technology companies, with a commensurate positive effect on the
high-tech industries in other countries, like China and India,” said
Issa.

Issa isn’t the only Republican to voice support for changing H-1B
regulations. Last month U.S. Representative Lamar Smith (R-TX) also
called for an increase in the amount of H-1B visas available per year.

Categories
Immigration Round Table

Effect of Petitioning Employers Lack of Financial Ability to Pay Wages

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Dear Atty. Lou,

I am a software engineer for a US consulting company. My H1B visa reached its sixth year and will expire in June 2011. A labor certification was filed by my employer last year. This application for labor certification was audited by the Certifying Officer. After responding to the audit, the labor certification application was denied.

The reason for the denial of the petition is that my employer has no financial ability to pay the required wage as stated in the application for labor certification. My company has sufficient income in the past. But at the time the labor certification was filed, the company’s tax returns show a taxable income of only $10,000 and after deductions it shows a negative amount. This negative figure resulted in the findings by Department of Labor Certifying Officer that the company has no ability to pay the required wages and therefore denied our application.

My employer has always paid me the correct wages whenever I am assigned to different companies to work. I do not understand this finding of the Certifying Officer. What is now the effect of this denial of my labor certification? Will I still be allowed to extend my H1B?

S. Engineer

Dear S. Engineer,

It is a reality that companies in certain industries actually suffer from financial loses as a result of the downturn of the economy. While you mention that your wages are being appropriately paid, there are some specific legal requirements that must be met before an application for your labor certification is approved.

Your labor certification application is part of the immigrant visa process and that the petitioning employer must attest to certain conditions of employment which includes the fact that it has “enough funds available to pay the wage or salary offered the alien” as per 20 CFR § 656.10(c)(3). What this means is that the Department of Labor will determine whether there is enough money available to guarantee the foreign national’s salary.

Most of the time the documentation requested to show proof of ability to pay includes but are not limited to the following: state payroll tax documentation; bank statement for the current or latest profit and loss from employer’s accountant; federal income tax statements; listing of current employees and their job titles.

From such documentation, the Department of Labor will determine whether there is ability to pay. In your case, a negative figure after deductions on your employer’s tax return is not sufficient proof of ability to pay and the Certifying Officer was right in its denial of the application pursuant to the pertinent regulations.

Your professional working visa may not be extended to its 7th year unless there is a Petition for Immigrant Visa or I-140 that is filed. In this case, your petition for I-140 may not be filed without a labor certification. Your option is to determine whether it is possible to change your status to a different nonimmigrant category. This is a case to case basis depending on the particular circumstances of the H1B employee. Otherwise, you may want to consider returning to your home country for one year and file for another H1B should you have another US employer who will petition you again in the future.

I hope this information is helpful. Good luck.

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, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon 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 can submit questions to law@tancinco.com)