Tag: immigrant petition

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Filipino Veterans Family Reunification Act Reintroduced in May 2021

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On May 19, 2021, Senators Mazie K. Hirono (D-Hawaii), Lisa Murkowski (R-Alaska), Dan Sullivan (R-Alaska), and Representatives Ed Case (D-Hawaii) and Don Young (R-Alaska) reintroduced the Filipino Veterans Family Reunification Act (S.1708), legislation that would speed up the visa process for children of Filipino World War II veterans.

Immigrant visa backlogs had resulted in separation of aging Filipino World War II veterans with their sons and daughters for several years. Many veterans passed away waiting for the visas of their children to become available. 

The Filipino Veterans Family Reunification Act, if passed into law, would provide a permanent solution by amending the Immigration and Nationality Act to exempt from the  numerical limits the sons and daughters of Filipino World War II veterans who were naturalized under the 1990 law or other specified laws. Essentially, green cards or immigrant visas will be made available to them after approval and processing of their visa petitions. This proposed legislation will not only assist our veterans during their twilight years but also it is considered a recognition of their critical services during World War II. 

This bill is scheduled for mark up on committee level in July 2021 and more Republican co-sponsors are needed to support this bill.  We urge community members to contact their legislators to support the passage of this bill.

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Revisiting 245i: Adjustment of Status For Those In Unlawful Presence

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First off, this section 245i applies only to those with approved family or employment petitions whose priority dates are current, and are present in the United States in unlawful status.

How can they obtain their green card without having to leave the United States? Can they adjust their status in the United States applying 245i?

Mary, a Filipino national, entered the United States in December 2000 as a crew-member D visa. She boarded the ship going to the U.S. but eventually she jumped ship upon advice of her U.S. citizen sister who filed a petition for her in March 2001. When the petition of her sister was approved, she was told that she has to wait for more than 20 years before the visa will become available. Mary fell out of status and tried to find ways to obtain legal status.

In 2007, a U.S. employer hired her as a caregiver. She worked for a health care facility and a petition was filed on her behalf. The petition was denied because the petitioner, who filed for bankruptcy in 2008 cannot show proof of ability to pay her salary. Mary suffered depression but recovered. She now is working again as a caregiver.

Recently, she noticed that her sister’s visa petition’s priority date of 2001 is now current. She has been in unlawful status for 20 years and is wondering if she can still get her green card in the United States. Another concern that she has is Trump’s Suspension of Immigration for family based preference petitions which would cover the petition filed by her sister.

What can Mary do?

Section 245(i)

The nation’s immigration law had been remarkably amended during the Clinton Administration. But it was also under President Clinton’s time that thousands of immigrants who were in unlawful presence were able to obtain legal status when he enacted section 245i of the Immigration and Nationality Act.

INA §245(i) allows certain persons to apply for adjustment of status notwithstanding the fact that they entered without inspection, overstayed, or worked without authorization. A person who is not generally allowed to adjust status may do so if s/he is grandfathered under §245(i) provided that: (1) s/he is the beneficiary of a labor certification or visa petition under section 204 (including I-140, I-130, I-360, I-526) that was filed on or before Jan. 14, 1998; or (2) s/he is the beneficiary of a labor certification or visa petition that was filed after Jan. 14, 1998 but on or before Apr. 30, 2001, and he or she was physically present in the U.S. on Dec. 21, 2000.

To be grandfathered, an immigrant visa petition or labor certification application on or before Apr. 30, 2001 had to be: (1) timely filed; (2) the application had to be “approvable when filed” which is defined as (i) properly filed; (ii) meritorious in fact; and (iii) nonfrivolous.

Those who meet the eligibility requirements even if they are in unlawful status and are generally barred from filing adjustment of status under Section 245A and 245(c) may use this specific provision to obtain the green card.

Those who have immediate relatives (U.S. citizens on behalf of spouses, minor children and parents) as their petitioners may not need 245i to adjust their status because unlawful presence is waived for immediate relatives. This 245i applies mostly to family and employment based preference categories (eg. 1st, 2nd, 3rd and 4th categories).

Since there were numerous unlawfully present individuals who filed visa petitions under the Clinton administration (to take advantage of the 245i provision), and their priority dates of 2001 are now current in 2020, section 245i may allow them now to adjust their status. After 20 years, they can now finally adjust to get their green card.

In the case of Mary, since the petition was filed before April 30, 2001, the priority is now current based on the July 2020 visa bulletin, she will qualify under 245i to obtain her green card in the United States. The Trump Suspension of Immigration will not affect those who are present in the United States, hence, Mary may still file for her adjustment of status.

(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 1-888-930-0808; email at law@tancinco.com, www.facebook.com/tancincolaw or check their website at tancinco.weareph.com/old.)

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No 3-10 Year Bar for Survivor of Domestic Violence

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October is Domestic Violence Awareness Month. It is important for our community members to understand that survivors of domestic violence most especially the vulnerable immigrants who were abused by their petitioners have the privilege to self petition under the Violence Against Women Act. Let us revisit the case of Samantha who left for the Philippines after being abused by her U.S. citizen spouse.

Samantha was introduced to Steve in 2009 while she was working for a retail company in Manila. Steve is a U.S. citizen and has been Samantha’s client for a long time. After a few months, Samantha and Steve had a formal relationship. Steve then filed a fiancé visa petition for Samantha.

After being married for more than a year, no petition for green card was ever filed by Steve on Samantha’s behalf. A few months after living together, Steve started to act strange. Samantha was often yelled at and prevented from contacting her friends who also live in California. She was forced to stay home and not work because she did not possess any proper immigration document. Every time Samantha raises the issue about her petition, Steve would be upset with her and would show her his displeasure.

Samantha started feeling scared everyday. A few times, Steve would go home drunk and hurt Samantha by forcing her to have sex with him. When Samantha could no longer bear her situation, she escaped and went to a non-profit organization protecting women who are victims of domestic violence. A self-petition was filed by Samantha under the Violence Against Women Act (VAWA). Since she felt alone and depressed, she did not wait for the result of her petition. She departed for Manila and returned to her former place of employment. Samantha was happier after she separated from Steve. Samantha’s self-petition was approved by the USCIS after she had already left for the Philippines.

If Samantha wishes to pursue her application for immigrant visa based on the self-petition that she filed, will she be able to obtain the visa at the U.S. Embassy?

VAWA Self Petition

Those who are survivors of domestic violence may file as “Self Petitioners” under the Violence Against Women Act. These self-petitioners include three categories:

  1. spouse of US citizen or green card holders;
  2. child of the spouse subjected to extreme cruelty and
  3. parents abused by US citizen children at least 21 years old.

The survivor must have been subjected to extreme cruelty, which could either be physical, psychological, sexual or emotional abuse.

In the case of Samantha, since she had left for the Philippines, she would still be able to have her visa processed at the U.S. Embassy in Manila. What Samantha can do to successfully obtain her visa despite the unlawful presence is to explain to the consular officer the substantial connection between the abuse and her prior Unlawful Presence. In this case, Steve had full control over Samantha. He intentionally did not file Samantha’s immigrant petition and the latter was not allowed to leave their conjugal home. This abusive behavior resulted in the unlawful presence of Samantha. If this substantial connection between the abuse and the unlawful presence is established, Samantha may apply and be granted her immigrant visa without facing the 3-10 year bar.

(Atty. Lourdes Santos Tancinco, Esq. is an immigration attorney with the Tancinco Law Offices, a San Francisco CA based law firm. She may be reached at 1 888 930 0808, law@tancinco.com, or through facebook.com/tancincolaw.)