Tag: department of homeland security

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Global Pinoy

Predicament of American daughter: Family separation

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Sonia was born and raised in San Jose, California. From the outside, Sonia seemed like your typical happy-go-lucky senior in high school getting ready to go college, but at home, Sonia lives a different reality.

Her parents, Edgar and Rowena, are from the Philippines. They came to the United States when Rowena was pregnant with Sonia and decided to overstay their tourist visa.

Refused to leave

When Sonia was very young, her parents were arrested by the Immigration Service and were to be deported. Edgar and Rowena, however, refused to leave the US and decided to stay. For years, they hid their status and tirelessly worked several under-the-table jobs so Sonia could study in the best schools and participate in after-school activities.

Illegal status

It was only recently that Sonia found out about her parents’ illegal status in the United States when she wanted to apply for private student loans for college. Since finding out the truth about her parents’ illegal status, Sonia has been worried that her parents can be taken anytime from her and she’s scared of what will happen when she leaves for college. She relies on her parents for everything, emotional and financial needs. In two weeks, Sonia will be turning 18 years old and instead of the usual birthday debut celebration, she told her parents not to prepare anything special.

Instead, she wanted to take steps to help her parents. Is there anything that Sonia can legally do for her parents?

Deferred action

More than a year ago, US President Barack Obama released two immigration executive actions that will provide immigration relief to undocumented parents of US citizens (called DAPA or Deferred Action for Parents of Americans); and, an expansion of the Deferred Action for Childhood Arrivals (DACA) for undocumented young immigrants.

The DAPA and DACA will affect more than 4 million undocumented immigrants.

Instead of the implementation of these reliefs, however, a lawsuit was filed by 26 states. Currently, the implementation of Dapa, the program which was supposed to allow undocumented parents with US citizen children to obtain an employment authorization document and be deferred from removal, is still suspended until the US Supreme Court decides on this case.

It is expected a decision will be reached by June 2016. Until then, parents with US citizen children will have to avail of alternative options.

US citizen children may only petition their parents after they turn 21 years old. Until Sonia reaches this age, there is really nothing much she can do affirmatively to help her parents with their immigration status. Even assuming that she turns 21 years old, there is a bigger hurdle that she has to overcome before she can file a petition for her parents.

The deportation order may be enforced anytime by the Department of Homeland Security (DHS) against her parents if they are found to be still present in the United States. Fortunately, there is “prosecutorial discretion” request that may be filed with the DHS to prevent this from happening.

Sonia’s case is very sympathetic and her desperation to help her parents is understandable considering that her parents are her only means of support. She represents many young immigrants who are in the same situation and who were afforded the opportunity to be integrated into the American system just to be threatened with family separation with no relief available.

Hopefully, the DAPA litigation will result in a favorable judgment for the Obama administration and her parents will be given temporary relief.

Categories
Updates

DHS Proposing new employment based immigration regulations

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The Department of Homeland Security [DHS] is offering rule that would modernize and improve certain aspects of employment based immigration visa programs. People with temporary work visas waiting for a green card are the one who is going to get more benefits because of these projected changes. The DHS says that the projected changes are ‘envisioned to better expedite US employers to recruit and maintain extremely accompanied workers who have profited from employment-based immigration visa petitions, while growing the skill of such workers to progress their careers by accepting raises, changing positions with present employers, changing employers, and trailing other employment opportunities.

Many of the projected changes will actually have no practical effect of any kind, according to the National Law Review – an online news source published by a group of in-house attorneys. The National Law Review states that even the most noteworthy change of them all, relating to work authorization for certain individuals with approved I-140s, will have very little effect basically.

Highlights:

 

  1. The extension of an H-1B visa can be obtained beyond the maximum six-year stay.
  2. When an H-1B non-immigrant can shift jobs or employers without it affecting his or her permitted immigrant visa petition.
  3. How to calculate H-1B recapture time [days outside the US that do not count towards the maximum six-year stay].
  4. Those businesses that qualify as H-1B ‘cap-exempt’ employers. This is important as in recent years the H-1B visa quota is immensely oversubscribed within a few days of the quota becoming available at the opening of April each year.
  5. Offering a one-time 60-day grace period, during an authorized validity period, for individuals in E-1, E-2, E-3, H-1B, L-1, or TN status, where employment ends due to voluntary or involuntary termination or lay off. These individuals are not authorized to work during the grace period.
  6. An addition of the 10-day grace period allowed prior to and after H-1B status to also include persons in E-1, E-2, E-3 or L-1 status. During the 10-day grace period, you will not be permitted to work. On a one time basis, you also benefit from 60 day grace period, if you are on this employment related visas.
  7. Permitting issuance of one-year Employment Authorization Documents (EAD) for individuals in E-3, H-1B, H-1B1, L-1 or O-1 status with an approved I-140 and no available visa numbers if the individual can show compelling circumstances. It is not certain what is meant by convincing circumstances; DHS includes examples, such as serious ailment and disabilities. If you work with an EAD in these circumstances then it will be considered to be the case that you are no longer on a non-immigrant work visa and when visa numbers are available will need to apply for an immigrant visa from outside the US. If you have an EAD your spouse and children may also be able to apply for an EAD. Renewals are allowed in certain circumstances.
  8. Removing the 90-day processing time required by United States Citizenship and Immigration Services (USCIS) for Employment Authorization Documents (EADs), spontaneously extending most EADs 180 days beyond the expiration if the extension was timely filed.

It is worthwhile to note that the DHS proposal does include other regulatory amendments. However, these additional changes largely conform to current policy guidance, and so the primary purpose of the regulations in these additional areas is to formalize the existing guidance.

 

 

Categories
Global Pinoy

5 reasons Filipino immigrants apply for U.S. citizenship

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Immigrants who have resided in the United States for an extended period of time aspire to become US citizens for different reasons.

For the more than 4 million Filipinos who decided to live and make the US their adopted land, the following are some of their motivations for seeking naturalization.

1. Family unity
Green card holders or non-US citizens who are permanent residents may petition their unmarried children as well as their spouses. However, unlike US citizens, they are not allowed to petition their parents, their married children and their siblings.

Being a US citizen provides them the ability to petition more family members including their future spouses or fiancées. Also, US citizens may petition their minor children and spouses faster (about 12 months) as compared to green card holder petitioners.

Filipino immigrants who are family-oriented would prefer to be naturalized as US citizens rather than wait to be reunited with their family members.

2. Avoiding separation
Once a green card holder migrates, the permanent resident status is not really “permanent” in the sense that it may be revoked for cause by the US Department of Homeland Security.

This happens when an immigrant is convicted of a removable/deportable offense even if family members are all US citizens.

This happened to a longtime Filipino immigrant who was arrested for a traffic violation but was later found to have a criminal history. The criminal convictions he had were deportable offenses and resulted in his deportation from the United States and consequently was separated from his US citizen spouse and children. This situation could have been avoided if the immigrant was a naturalized US citizen at the time of conviction.

To prevent any unintended immigration consequence, it would be best to apply for US citizenship as soon as the immigrant meets the eligibility for naturalization.

3. Civic engagement
Filipinos are the second highest growing minority group and integration to the adopted land becomes critical. Naturalized US citizens are given access to voting, political rights and can seek equal protection of the law.

A naturalized US citizen may hold elected positions that will not only protect the interests of their constituents but also their community.

4. Federal employment
A naturalized US citizen may be afforded opportunities for federal employment with better benefits.

Many Filipinos have joined the US military and become US citizens giving them the ability to petition family members and enjoy military benefits.

5. Ease of travel
This is probably the least important in terms of the reasons for becoming a US citizen but interestingly, some Filipinos carry pride in holding US passport in traveling to other countries.

Certainly, there are more than these five reasons to apply for US citizenship. The motivation may be toward immigration integration but it does not take out the “Filipino” in the immigrant. In the United States, a Filipino who is a US citizen is still perceived as part of the Filipino minority group.

In success or failure, the Filipino naturalized US citizen will still be perceived as a Filipino in his adopted land.

(The author may be reached at law@tancinco.com, facebook.com/tancincolaw, tancinco.weareph.com/old or [02] 721-1963)