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Visiting America

By: Dennis E. Chua, Esq.

The Philippine Department of Tourism has been receiving complaints from the public that some individuals and entities charge a service fee of around P300,000 Philippine Pesos to supposedly assist them in their applications for a US visitor’s visa before the US Embassy in Manila. Worse, some of these individuals and entities claim that they have a contact working at the US Embassy in Manila which will almost guarantee the issuance of a US visitor’s visa. Despite the representation and assistance by these individuals and entities, most of these hopeful visa applicants get denied of their US visitor’s visas. The denial of these applications is even being blamed on the applicants themselves for their failure to properly respond to the questions of the US consular officer.

To avoid being victimized by unscrupulous individuals and entities, here are some information to note in applying for a visitor’s visa before the US Embassy.

Individuals who wish to enter the United States as a visitor must apply for a visitor’s visa with the appropriate US Embassy or Consular Office. A visitor’s visa may be issued to a visitor for pleasure if the primary purpose of the applicant is to tour the country and visit friends and family in the United States. A visitor’s visa may also be issued to visitor for business. Some of the permissible activities for a visitor for business include the following: (1) individuals who engage in commercial transactions that do not involve gainful employment in the US; (2) businessmen negotiating contracts in the US; (3) individuals participating in any court or administrative hearings; (4) individuals consulting with business associates; (5) individuals participating in scientific, educational, professional or business conventions, conferences or seminars.

The visitor’s visa applicant must obtain the following basis requirements before he or she can schedule an appointment with the US embassy: (1) Application forms (Form DS 156 and DS 157); (2) Valid passport; (3) Passport style photos.

After these documents have been secured, the applicant may now schedule an appointment by either calling the embassy call center or online. The applicant must also pay the machine-readable fee of $131.

During the visa interview, it is important for the applicant to relax and be truthful with the answers he or she gives to US consular officer. Should the consular officer make a finding that the applicant has lied in his or her application, such finding may affect future applications before the US Embassy.

The applicant must also be ready to show the US consular officer with documents demonstrating the applicant’s non-immigrant intent. Meaning the applicant will not overstay and remain in the US beyond his or her authorized stay or go TNT. To show non-immigrant intent, the applicant must present the following:

Ties of the applicant to his home country. Ties could be in the form of: (a) presence of immediate and extended families in the home country and none in the US; (b) career and employment opportunities in the home country; (c) membership in groups; (d) ownership of property; (e) interests or opportunities that may be lost if the applicant does not return to his home country; (f) educational opportunities in the home country.

Absence of ties in the United States.

History of the applicant’s family member’s timely return from the US on prior trips.

Adequate financial arrangements for the trip.

Specific travel plans.

After the interview, the applicant will then be informed whether he or she qualifies for the visa.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com.

The Battered Spouse

By: Jean S. Tinsay, Esq.

Sylvia came to America carrying her hopes and dreams for a better life. Sadly, those dreams quickly turned into a nightmare. While working as a volunteer back in the Philippines she met Gordo who was the nephew of one of her patients at the hospital. Gordo was a U.S. citizen who having been laid off from his job in the U.S. work was vacationing in the Philippines. After a whirlwind courtship, they were married and he brought her to the United States.

Upon her arrival and at the prodding of her husband, she immediately took the nursing examination. Unfortunately, she failed to pass the test. Jobs were hard to find and since Sylvia had no local experience the only work she could get was that of a caregiver. Sylvia, however, was just glad to be working and able to contribute her meager salary to the family coffers as well as send some money to her family back home. Not Gordo whose plan of having a registered nurse for a wife to support him was thwarted. He started taking out his frustration on Sylvia. At first, it was just berating her and finding fault in everything she did. The yelling and screaming turned into threats and quickly escalated into physical violence. On two occasions, well meaning neighbors had called the police to their house. Gordo threatened to have her deported if she ever files a complaint against him. Since she came to the United States as the spouse of a U.S. citizen, Sylvia was granted conditional resident status which expires in two years from the time she entered the United States as an immigrant.

A person who obtains immigrant status in the United States through marriage to a U.S. citizen or permanent resident is granted a conditional two-year resident status in the United States. In order to remove the conditions on residence, the conditional resident is required to file together with the U.S. citizen or permanent resident spouse a joint petition to remove the conditions on residence. The joint petition must be filed within 90 days before the second anniversary of the grant of conditional residence. Failure to file a joint petition to remove conditions on residence will result in the automatic termination of resident status as of the second anniversary of the grant of conditional residence and subject the conditional resident to removal proceedings.

However, the conditional resident may request for a waiver of the joint filing requirement if the conditional resident can establish that:

1. The marriage was entered in good faith, and the U.S. citizen or permanent resident spouse subsequently dies;

2. The marriage was entered in good faith, but the marriage was later terminated due to divorce or annulment;

3. The marriage was entered in good faith, but the conditional resident was battered or subjected to extreme cruelty by the U.S. citizen or permanent resident spouse; or

4. The removal of the conditional resident from the United States will result in extreme hardship.

In this case, Sylvia leaving her abusive husband need not result in termination of her resident status and subsequent removal from the United States. As a battered spouse, she can request for a waiver of the joint filing requirement and file the petition to remove conditions on residence on her own. She will need to establish her eligibility for a waiver (as a battered spouse) by submitting credible evidence of the abuse she suffered from the hands of her U.S. citizen husband such as copies of the police reports, medical reports, statements from neighbors and photographs showing her injuries. If Sylvia is successful in establishing that she is a battered spouse and that she entered the marriage in good faith, the CIS will approve her petition, the conditions on her residence will be removed and she will obtain permanent resident status in the United States.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com

T or U Visas For Victims of Trafficking or Crime

By: Aurora Vega-Buzon, Esq.

Daphne, a night manager at the Shangri-La Hotel in Manila, was recruited by Hotel Management Incorporated (HMI) to work at a hotel in Myrtle Beach, South Carolina. HMI recruits workers from Jamaica, Costa Rica, Honduras, and the Philippines, to work as seasonal workers in various hotels in different cities and states throughout the United States. Daphne was housed in a dorm-room style housing where 40 other hotel workers lived and shared a room with 3 other female workers. Every day, all workers ride in a shuttle from the housing to the hotel where they work, and they were shuttled back to the housing after their shifts. Daphne works 85 hours a week, at $6.50/per hour. Payments for housing and transportation allowances were automatically deducted from their paychecks. HMI also deducts other “fees” to cover the costs of their recruitment, placement and air fare from the Philippines. Thus, Daphne gets only about $380/month which is barely enough for their food and other basic necessities. Daphne does not know that the minimum wage is $7.25, and that she is entitled to overtime pay.

Christian, a high school math teacher from Bacolod, was also recruited to work in the United States by International Teachers Placement (ITP). As placement fee, ITP collected roughly $12,000 from Christian to “guarantee placement”. Within 11 months, Christian arrived in the United States with 4 other teachers who, like him, were told will teach at various middle schools in Illinois. They were met at the airport by ITP’s president, Mr. Greg Dela Paz who brought them to an apartment where several other teachers recruited by ITP lived. Mr. Dela Paz told Christian and the other teachers that they can stay in the apartment and share in the rent, or find their own housing. One week later, Mr. Dela Paz told Christian and the 4 other teachers that their teaching positions had been filled but they will be assisted in applying in other schools in Illinois or neighboring Iowa.

Daphne and Christian may be eligible to apply for T or U visa classifications, as victims of trafficking and/or other qualifying criminal activity.

What is a T or U Visa? The T Visa classification is available to persons; (i) who have been subject to “severe trafficking,” defined as the “use of force, fraud or coercion for sex trafficking, or the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for involuntary servitude, peonage, debt bondage, or slavery;” (ii) who are physically present in the United States.; (iii) who the Secretary of the Department of Homeland Security (DHS) in consultation with the Attorney General agree have complied with a reasonable request by federal, state or local law enforcement agency to assist in the investigation or prosecution of such trafficking or in the investigation of crimes where acts of trafficking are at least one central reason for the crime; or who is unable to cooperate in the investigation or prosecution due to a physical or psychological trauma; or who is under 18; and (iv) who would “suffer extreme hardship involving unusual and severe harm upon removal.

The U Visa classification, on the other hand, provides temporary immigration benefits to certain victims of qualifying criminal activity who: (1) have suffered substantial mental or physical abuse as a result of having been a victim of “qualifying criminal activity;” (2) possess credible and reliable information establishing that s/he has knowledge of the details concerning the qualifying criminal activity upon which his/her petition is based; and (3) have been helpful, is being helpful, or is likely to be helpful to a certifying agency in the investigation or prosecution of the qualifying criminal activity; and (4) the qualifying criminal activity occurred in the United States, in United States territories or possessions, or violated a federal law that provides for extraterritorial jurisdiction.

Qualifying criminal activity includes one or more of the following, or any other similar activities in violation of federal, state, or local criminal laws: abduction; blackmail; domestic violence; extortion; false imprisonment; felonious assault; female genital mutilation; being held as a hostage; incest; involuntary servitude; kidnapping; manslaughter; murder; obstruction of justice; peonage; perjury; prostitution; rape; sexual assault; (abusive) sexual contact; sexual exploitation; slave trade; torture; trafficking; unlawful criminal restraint; witness tampering; or attempt, conspiracy, or solicitation to commit any of these crimes.

A person granted a T or a U Visa classification may obtain employment authorization, which is incident to the T or U status. In addition, a person granted a T or U Visa classification may further be eligible to adjust status to that of a Lawful Permanent Resident, upon meeting certain criteria and requirements.

A careful evaluation by an experienced law firm will assist an individual in determining whether s/he is eligible for a T or a U visa classification, and what his/her options are under the immigration laws. As a signatory to the U.N. Convention Against Transnational Organized Crime, and its supplemental protocols on Trafficking in Persons, the Philippines has created the Inter-Agency Council Against Trafficking (IACAT) headed by Justice Undersecretary Jose Vicente Salazar. The Philippines works closely with United States Department of State’s Office to Monitor and Combat Trafficking in Persons. Victims of trafficking or “modern slavery” can also seek the assistance of IACAT and/or assist IACAT in prosecuting traffickers, by calling (011-632) 523-8481 local 216.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Significance of Section 245(i) of the INA.

By: Dennis E. Chua, Esq.

Under the present state of the law, a person who is no longer in lawful nonimmigrant status will not be allowed to file for an application for adjustment of status here in the United States even if an immigrant petition has been approved for that person and his priority date is already current. There are however some exceptions to this general rule.

The first exception is if the petition was filed by a US citizen spouse, child or parent and that parent is petitioning for a child below 21 years old.

The next exception is if the applicant is applying for adjustment based on an employment based petition filed within 180 days from the date the applicant fell out of status.

The last exception is if the person is covered by Section 245(i) of the Immigration and Nationality Act. Section 245(i) of the Immigration and Nationality Act (INA) allows persons who are the beneficiaries of immigrant visa petitions or labor certification applications filed on or before January 14, 1998, to file for adjustment of status in the U.S. despite having fallen out of status or having entered without inspection. A limited extension of Section 245(i) in 2000 covered beneficiaries of immigrant visa petitions or labor certification applications filed on or before April 30, 2001. However these beneficiaries should have been physically present in the United States on or before December 21, 2000 to qualify for 245(i).

The following illustrations would best explain one’s eligibility under 245(i).

1. Reynaldo entered the United States as a tourist in April 2008. Reynaldo was the beneficiary of an immigrant petition filed by his US citizen father on September 1, 1995. Reynaldo decided not to go back to his home country when he entered in 2008 so he could spend more time with his parents. Reynaldo’s priority date will be current in July 1 2010. Can Reynaldo adjust his status in the US? Yes, Reynaldo can adjust his status since is the beneficiary of an approved petition filed on or before January 14, 1998.

2. Victoria entered the United States as a tourist on May 5, 2006. No immigration petitions have been filed for Victoria. Victoria was offered to work for a care home in Los Angeles. The care home owner also offered to sponsor her forgreen card. The employer filed a labor certification application with the Department of Labor which was eventually certified. The immigrant petition filed with the US Citizenship and Immigration Services was likewise approved. When Victoria’s priority date becomes current, can she apply for adjustment of status? Victoria cannot file for adjustment of status even if his labor certification application and immigrant petition have been approved as she is not covered by Section 245(i).

3. Manuel is a seaman who was petitioned by his father on December 5, 1997. His father however died a year after the petition was filed. On February 14, 2008, Manuel was on board a cargo ship which was passing through San Francisco. His ship docked at the Port of San Francisco and Manuel and the other crew members were given shore leave. Manuel called up his relatives in San Francisco who picked him up at the port. After being convinced by his relatives, Manuel decided not to return to his ship and to just stay in the US. After a year Manuel met Kritika, a US citizen. The two later had an amorous relationship and eventually got married. Manuel can adjust his status through a visa petition filed by his wife because he is covered by 245(i). Had Manuel not been covered by 245(i), he could not adjust his status even though he is married to a US citizen because he entered the country as a crewman.

Section 245(i) is one of the more significant legislations passed and the law has allowed a substantial number of individuals to get their permanent residence status. People who are covered by 245(i) must take advantage of this law so that they may be able to legalize their stay in the U.S.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com

Revisiting DACA (Deferred Action for Childhood Arrivals) – Six Months Later

By: Lilli Baculli, Esq.

Michelle was asked by her High School Principal for a “special meeting” together with her parents. At the meeting, the Principal announced the good news that Michelle received a scholarship that she can use towards college tuition. Michelle is a senior in high school, and dreams of going to Medical School and be a doctor.

Similarly, Jackson just received word that he is being sent overseas for a three-month project at a prestigious magazine. At 22, he is the youngest photojournalist to be hired to date by this magazine, and he is excited to show his bosses his photojournalistic prowess.

What Michelle and Jackson do not know and which their parents have to explain, is that they were each brought to America by their parents when they were young, and have lived in America ever since. They are “American” by upbringing and values, except that they do not have the legal papers to show for it.

What are Michelle and Jackson’s options?

It has been five months and nineteen days since June 15, 2012, when President Obama instituted a new policy to “stop the deportation of young illegal immigrants who entered the United States as children if they meet certain requirements.” The issue is revisited now that the elections are over and President Obama remains in office.

To be clear, the exercise of prosecutorial discretion has been in place for a while now, both by the U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE). More importantly, this new policy is not law. It confers no substantive right, immigration status or pathway to citizenship. Only Congress, acting through its legislative authority, can confer these rights. It is simply an exercise of discretion in deferring the institution of deportation proceedings for certain illegal immigrants, and these individuals remain to be deportable even in the event of a favorable exercise of discretion.

The future of the DREAM Act and DACA remain uncertain. Because of this uncertainty, some young illegal immigrants are hesitant to come forward and take advantage of what DACA offers. To be sure, whether or not to apply for DACA is one’s own personal decision to make.

Sadly, Michelle will have to turn down the scholarship, and Jackson will have to stay put on American soil. But they might be eligible for, and be able to take advantage of, the policy of Deferred Action.

What can DACA do for you?

Whatever DACA’s uncertainties are, the greatest positive argument for pursing DACA is that individuals who are granted deferred action by either ICE or USCIS may apply for work authorization during the period of deferred action. Work authorization is for a period of two (2) years. Whatever uncertainties lie after the two year period of deferred action, the fact of the matter is that individuals who are granted deferred action now, will be able to earn a living, support themselves and their families, and contribute positively to their community.

Unless and until Congress makes a law that would once and for all address the gaps in current immigration law, young individuals who are in similar situations as Michelle and Jackson are able to take advantage – for whatever it may serve them – of the policy of Deferred Action.

It is important to be informed and know your options. An experienced firm or attorney will be able to help you understand and navigate through the legal process of Deferred Action.

Atty. Lilli A. Baculi is an associate attorney in Chua Tinsay & Vega, A Professional Legal Corporation (CTV) – a full service law firm with offices in San Francisco, San Diego, Sacramento and Philippines. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (619) 955-6277; (415) 495-8088; lbaculi@ctvattys.com.

Immigration 101

By: Jean S. Tinsay, Esq.

I recently received a query from a client, a U.S. permanent resident, who wanted to file an immigrant petition for her mother. I had to explain to her that there is no immigrant visa category for a U.S. permanent resident petitioning for a parent and that we had to wait until she is a U.S. citizen before we can file an immigrant petition for her mother. There are certain basic immigration facts that are worth knowing. This article provides some basic information relating to family-based immigrant petitions.

U.S. permanent residency or naturalization brings with it certain benefits, one of which is that it allows the individual to bring his or her family from abroad. Who you can bring to the United States however, depends on whether you are a U.S. permanent resident or a naturalized U.S. citizen. A U.S. citizen can bring her or his spouse, parents, siblings and unmarried and married children (adopted, legitimate and illegitimate). U.S. permanent residents can only file immigrant petitions for her or his spouse and unmarried children (adopted, legitimate and illegitimate).

Once an immigrant petition has been filed and approved on behalf of the alien relative what follows next depends on whether the alien is an “immediate relative” or a “”family-based preference immigrant.” An immediate relative is a parent, spouse or child under 21 years old of a U.S. citizen. For these relatives, an immigrant visa is immediately available. Once the immigrant petition is approved, the USCIS forwards the case to the National Visa Center for visa processing. After the National Visa Center receives the visa fees and all required documents, it will then send the relative alien an appointment for his or her immigrant visa interview.

“Family-based preference immigrants” are other classes of relatives who are not “immediate relatives.” These are unmarried children over 21 of a U.S. citizen, married children of a U.S. citizen, siblings of a U.S. citizen and the spouse and unmarried children of a U.S. permanent resident. For these relatives, immigrant visa are not immediately available and are subject to numerical limitations. The total annual immigrant visas allotted for family-based preference immigrants is 226,000 which is distributed to the different categories of relatives. For example, married children of U.S. citizens are allotted 23,400 immigrant visas per year. In addition to a fixed quota for each category, there is also a per country limit which is set a 7%.

The Visa Bulletin which is published by the U.S. Department of State provides a monthly update of what priority dates are being processed and explains how immigrant visas are allotted. All preference immigrants are assigned a priority date. The “priority date” is the date when the immigrant petition on behalf of the alien relative was filed. Once the alien’s priority date is earlier than the cut-off date as it appears in the Visa Bulletin that means an immigrant visa is now available to that alien relative.

The Visa Bulletin for November 2011 shows the following cut-off dates for the Philippines and other countries. First: (F1) Unmarried Sons and Daughters of U.S. Citizens Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents A. (F2A) Spouses and Children of Permanent Residents B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents Third:(F3) Married Sons and Daughters of U.S. Citizens Fourth:(F4) Brothers and Sisters of Adult U.S. Citizens.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available. (NOTE: Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family- Sponsored All Chargeability Areas Except Those Listed CHINA – mainland born INDIA MEXICO

PHILIPPINES

F1 22JUL04 22JUL04 22JUL04 APR93 08FEB97

F2A * 15FEB09 15FEB09 15FEB09 01DEC08 15FEB09

F2B 01AUG03 01AUG03 01AUG03 22NOV92 15JUL01

F3 22SEP01 22SEP01 22SEP01 08DEC92 22JUN92

F4 15JUN00 15JUN00 15JUN00 22APR96 22AUG88

To view a complete copy of the monthly Visa Bulletin you can go to the Department of State website at www.travel.state.gov.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com

CSPA’s “Opt Out” Provision

By: Jean S. Tinsay, Esq.

Understanding how immigrant visa numbers work can be confusing. Some are under the impression that by waiting to become a U.S. citizens, their unmarried children (21 years or older) will be able to come to the U.S. faster. Because of this, they wait to file for an immigrant petition until they become naturalized U.S. citizen. There are also those who file petitions for their unmarried children while they are permanent residents, then immediately naturalize thinking that by becoming U.S. citizens, their immigrant petitions will be upgraded. The Visa Bulletin which is published monthly by the Department of State provides information as to what immigrant numbers are available for each month. Only applicants who have a priority date earlier than the cut-off date will be able to apply for immigrant visas. The immigrant visa numbers for the Philippines in the family preference category for the month of October 2010 is provided below.

For example, an unmarried child (21 years or older) from the Philippines who is the beneficiary of a petition filed in August 2002 by his permanent resident parent falls under the second preference category (F2B). For October 2010, his priority date is already current since immigrant numbers are already available under the F2B preference category for those beneficiaries with priority dates of September 1, 2002 or earlier. However, if the parent had in the meantime become a U.S. citizen, the immigrant petition is automatically converted to the F1 category. As the table below shows, the immigrant numbers for this category are only available to those with priority dates of March 1, 1997 or earlier. This automatic conversion to the F1 category instead of speeding up the immigration process for the unmarried child actually causes a delay of 4-5 years.

Family PHILIPPINES

1st Unmarried Sons and Daughters of Citizens (“F1”) 01MAR97

2A Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents (“F2A”) 01APR10

2B Unmarried Sons and Daughters (21 years of age or older) (“F2B”) 01SEP02

3rd Married Sons and Daughters of Citizens (“F3”) 01MAR95

4th Brothers and Sisters of Adult Citizens (F4″) 01APR91

The passing of the Child Status Protection Act of 2002 (“CSPA”) which took effect on August 6, 2002 provided relief for unmarried children (21 years or older) whose parents naturalized after filing of immigrant petitions. CSPA provides an “opt out” provision which allows the unmarried child to elect not to have his immigrant petition converted to the first preference (F1) category and allow him retain his place in the second preference (F 2B) category. The unmarried child can exercise the “opt out” anytime after his parent naturalizes by submitting a written request to the District Office having jurisdiction of his residence. In the example provided above, once the request is approved, the unmarried child retains his F2B preference category classification and will be able to proceed with immigrant visa processing since his priority date is already current.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com

Are You Buried With Debts?

By: Dennis E. Chua, Esq.

Even with the recent announcement by some economists that the US recession has ended, a lot of people still don’t feel that the recession is really over. This is because we still hear news of companies continuing to lay off its employees; the unemployed having difficulty to get back to work; credit card holders struggling to pay off their debts; and homeowners losing their homes to foreclosure.

To add to the stress of one’s economic difficulties, it is compounded by the continuous phone calls of creditors and their collection agencies made not only at the debtors’ home but also at their place of work. To get out of this financial mess that they are in, many have opted to file for bankruptcy so that they could get rid of their debts.

For individual debtors who would like to file for bankruptcy, they can choose between filing a bankruptcy petition under Chapter 7 or Chapter 13.

In filing for Chapter 7 bankruptcy, the debtor is seeking to liquidate all his debts. The filing of the Chapter 7 petition operates in the total discharge of all debts of the debtor. However, there are some debts which are not dischargeable such as taxes and student loans. Once a Chapter 7 petition is filed, the debtor loses control of his assets and all non-exempt assets should be turned over to the bankruptcy court through the bankruptcy trustee. The bankruptcy court will then sell the debtor’s non-exempt property to pay off existing creditors.

As for a Chapter 13 bankruptcy filing, the debtors seek to reorganize his financial situation by submitting a payment plan to the bankruptcy court to pay off certain creditors. Unlike a bankruptcy petition under Chapter 7, the debtor retains control and possession of all his assets while the proceedings are pending. A debtor may choose to file under Chapter 13 if he has in his possession non-exempt assets (of value or equity) which are not secured by any debt.

Whatever type of bankruptcy petition a debtor may eventually choose, his filing would help him get back on track by giving him a fresh start – a life free of debts. Filing bankruptcy may thus be a way out for someone who is now buried in debts.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com

Abandonment of U.S. Residence

By: Jean S. Tinsay, Esq.

Jon and Kate own and operate a successful real estate business in California. In addition to owning a beautiful home, they had acquired several homes and apartment buildings which they rented out. In 2008, when the U.S. economy was struggling and the real estate business was sluggish, Jon and Kate decided to take a long vacation in the Philippines. While enjoying some rest and recreation, Jon and Kate decided to invest in a condominium development project. The couple initially intended to stay only for two months, but decided to extend their stay for another four months to monitor the progress of the project. Just before they were to return to the United States, Kate discovered she was pregnant with twins. Since Kate was already in her early 40s, the pregnancy was a difficult one. Her doctor ordered complete bed rest for the entire duration of her pregnancy and travelling was an absolute no-no. Jon and Kate who had been trying to have children for a decade were ecstatic. Per the doctor’s order, they postponed Kate’s trip to the United States and Jon ensured that she be provided with the best possible care. To the relief of the parents, the identical twins were born healthy. Jon who was a U.S. citizen immediately applied and obtained U.S. passports for the twins and made plans for his family to return to the United States. However, by this time, Kate who was a lawful permanent resident had been outside the United States for over one year.

A lawful permanent resident’s absence from the United States for over one (1) year is normally considered abandonment of residence in the United States and consequently will bar her entry to the United States as a lawful permanent resident.

However, a lawful permanent resident’s absence from the United States of over one (1) year will not result in abandonment of U.S. residency if the following requirements are met:

1. The alien was a lawful permanent resident at the time of departure from the U.S.

2. The alien had the intention of returning to the U.S. and has not abandoned this intention;

3. The alien is returning to the U.S. from a temporary visit abroad and, if the stay was protracted, this was caused by reasons beyond the control of the alien.

A lawful permanent resident who has remained outside the United States for longer than one (1) year who meets these requirements may be eligible for what is called a Returning Resident Immigrant (“SB 1”) visa. The SB-1 visa application is submitted to the nearest U.S. Embassy or Consulate. A consular officer will review the SB-1 visa application and supporting documentation and if approved, this will allow the lawful permanent resident to enter the United States and resume permanent residence.

What is important in determining eligibility for the SB-1 visa is the alien’s intent – whether the lawful permanent resident intended to return to the United States after a temporary absence. Examples of documentary evidence that may be submitted to establish that the alien intended to maintain a U.S residence include: driver’s license, U.S. Income Tax Returns filed for the past years, ownership of real and personal property located in the United States, salary paid by a U.S. employer, children’s enrollment in a U.S. school and evidence of family and social ties in the United States.

In addition, the lawful permanent resident must establish that she intended to stay abroad for a temporary period of time and that the delay in returning to the United States was due to reasons beyond her control. The following factors are considered in determining temporary intent: the trip abroad was for a specific purpose, the visit is expected to terminate within a relatively short and predetermined date and the alien expected to return to the United States as an actual home or place of employment.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com

Overcoming the “Public Charge” Ground of Inadmissibility

By: Jean S. Tinsay, Esq.

As far back as he could remember, Doogie wanted to grow up to be a doctor. Upon his graduation from college his family immigrated to the United States. However, instead of pursuing his medical studies, he immediately began working as a cashier at a restaurant and eventually was promoted to manager. As the years passed, his dream of becoming a doctor got dimmer and dimmer. In 2007, Carlos became one of the early casualties of the economic meltdown and lost his job. As they say, adversity can be turned into opportunity. Since the labor market looked bleak, Carlos decided to return to the Philippines to study medicine. While there, he met and married a fellow medical student. In a year’s time, Carlos will graduate and he plans to return to the United States with his wife. He is planning to file the immigrant petition for his wife now. However, he is worried that his wife’s immigrant visa application will not be approved because he has been living in the Philippines and has been unemployed for many years.

One of the immigrant visa processing requirements is the submission of a completed Affidavit of Support form. A U.S. citizen or permanent resident who files an immigrant petition on behalf of his or her alien relative is required to complete an Affidavit of Support form. A completed Affidavit of Support form is submitted to show that the sponsored immigrant will not likely become a public charge and the sponsor’s income and assets will be made available for the support of the intending immigrant, if necessary. Failure to meet the Affidavit of Support requirements may render the intending immigrant inadmissible. To qualify as a sponsor, one must be:

• a U.S. citizen or permanent resident;

• at least 18 years old;

• domiciled in the United States; and

• able to demonstrate income of at least 125% of the current Federal poverty guideline for the sponsor’s household size.

The country of domicile is the country where you maintain your principal residence and where you plan to reside for the foreseeable future. The fact that Carlos has been domiciled in the Philippines will not bar the approval of his wife’s immigrant visa application provided he shows his intention to reestablish domicile in the United States. Carlos will have to submit proof that he has taken steps to reestablish domicile no later than the time of his wife’s immigration to the United States.

As to his lack of income, this can be remedied by finding a joint sponsor to sign the Affidavit of Support for his wife. The joint sponsor need not be a family member of the petitioner or the sponsored immigrant. By signing the Affidavit of Support, the joint sponsor makes himself jointly liable with the petitioner for the support of the sponsored immigrant.

The sponsor or joint sponsor’s obligation to support the sponsored immigrant will continue until any one of the following events occur:

• the sponsored immigrant becomes a U.S. citizen;

• the sponsored immigrant has worked, or can be credited with, 40 quarters of coverage under the Social Security Act;

• the sponsored immigrant no longer has lawful permanent resident status, and has departed the United States;

• the sponsored immigrant becomes subject to removal, but applies for an obtains in removal proceedings a new grant of adjustment of status based on an affidavit of support signed by a different sponsor; or

• sponsor or sponsored immigrant dies.

It should be noted that divorce does not terminate the sponsor’s obligations under the Affidavit of Support. If the sponsor cannot meet the income requirements and cannot find a joint sponsor, he can also use his assets to meet the income requirements. Only assets that can be converted to cash within one year and without considerable hardship or financial loss may be used.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com

Inadmissibility: Waivers And Relief

By: Aurora Vega-Buzon, Esq.

In 1992, Roger was petitioned as a married child by his mother, a United States citizen. His visa is now available and his mother is about to pay for the visa fees and affidavit of support fee for Robert, his wife and 3 minor children. However, in 2003, when Robert came as a tourist, he attempted to file a divorce in Nevada 2 weeks after his arrival. In the divorce petition, he claimed he was a resident of Nevada for the last 3 months. The Court found out that he lied in the court papers filed and after investigation, he was charged and convicted for perjury and was sentenced to 3 months in county jail although he was released after only 30 days in jail.

In 1999, Editha came as a tourist and within 3 months, paid a manpower agency in Los Angeles who matched her with a company in LA’s garment district willing to file an H-1B working visa petition for her. The H-1B petition was denied for being bogus and fraudulent as there was no real job or position available for her in the company. Editha stayed on for another 7 months but eventually went home in 2000. Her father immediately filed a petition for her as a single child of a permanent resident. Now, her visa is also available.

Due to past criminal and immigration violations, Roger and Editha may be inadmissible (meaning they are barred from getting their immigrant visas) – Roger, for his prior perjury conviction (which is a crime involving moral turpitude); and Editha, for overstaying her tourist visa for over 6 months and, possibly for fraud (the bogus H-1B). Nevertheless, they may be entitled to waivers of inadmissibility and/or statutory exceptions under the Immigration and Nationality Act (INA) and other federal laws.

Waivers of inadmissibility are available if we can prove extreme hardship to qualifying relatives in the United States – that means Roger and Editha must submit evidence to prove that Roger’s U.S. citizen mother and Editha’s permanent resident father will suffer extreme hardship if visas are not granted to Roger and/or Editha.

For Roger, his 2003 perjury conviction in Nevada may be eligible under the “petty offense exception” under Section 212 (a)(2)(A)(ii) of the INA. The said exception provides that the bar to admission of an alien convicted for a crime of moral turpitude shall not apply if the alien (i) has committed only one crime involving moral turpitude; (2) must not have been sentenced to a term of imprisonment in excess of six months (regardless of the extent to which the sentence was ultimately executed); and (3) the offense must have a maximum possible sentence of one year. If Roger cannot avail of this exception, then he can file for a waiver under Section 212(h) of the INA.

Editha has 2 hurdles: the fraudulent H-1B petition and overstay of her tourist visa for more than 6 months. A good immigration attorney should first challenge any findings by the United States Embassy that she had a knowing, active and deliberate role in the making of false statements, and in the filing of the bogus H-1B petition. If the Embassy finds fraud, she can file a “fraud waiver” under Section 212 (i) of the INA. Should there be no finding of fraud, Editha is still subject to the 3-year bar due to her overstay and for this, she can file a waiver under INA Section 212 (a)(9)(B)(v).

Approval of waivers is based solely on the discretion of the United States Attorney General. Favorable discretion will be exercised if extreme hardship is clearly proven by a totality of factors affecting the parents of Roger and Editha, relating to- health and medical conditions, other physical and emotional conditions, personal considerations, financial situation, gainful employment, education, length of residence in the United States, presence of other family members in the United States, and other factors. A good quality waiver should contain credible declarations and strong supporting evidence explaining how each hardship factor will cause extreme hardship to Roger’s mother and Editha’s father. A good attorney knows it is not enough to submit just a stack of documents to the U.S. Embassy in Manila – to secure a favorable exercise of discretion, it is important to present an exhaustive and well-developed waiver application packet.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Effect of a Criminal Conviction on

Immigrant Visa Applications

By: Dennis E. Chua, Esq.

If you have been convicted of a crime, it could make you ineligible to enter the United States. It could mean that your dream to be reunited with a loved one or family member in the country could not be fulfilled. There are several types of criminal convictions which will bar one from entering the United States. One of them is a conviction for a crime involving moral turpitude.

What is then a crime involving moral turpitude? Crimes involving moral turpitude cover a wide range of offenses from petty theft to homicide convictions. Courts have defined them as acts that are morally reprehensible and intrinsically wrong as opposed to a violation of a regulatory prohibition. Given the vague definition of a crime involving moral turpitude, it is important to look into the elements of the crime in order to determine if the conviction falls under the definition of a crime involving moral turpitude.

Even if a person has been convicted of a crime involving moral turpitude, that person may still be able to join his loved one and family in the United States. The person may file a waiver and ask that he be allowed to enter the United States despite his conviction of a crime involving moral turpitude. The factual backdrop of one our cases will best illustrate this.

Cynthia who is a citizen of the United States met Felix while she was visiting the Philippines. It was love at first sight for Cynthia and Felix. After a one month courtship, Cynthia and Felix started having an amorous relationship. They continued to maintain their relationship even after Cynthia went back to the United States. After a year, Cynthia returned to the Philippines and the two tied the knot and professed undying love in a religious ceremony. Cynthia filed a petition for Felix which was eventually approved by the US Citizenship and Immigration Service. The case was then referred to the US Embassy in Manila so that Felix could be interviewed regarding his immigrant visa. Unknown to Cynthia, Felix was involved in an altercation some twenty years ago. While he was defending his brother, he stabbed and wounded his brother’s would be assailant. Felix was arrested and convicted of a crime of attempted homicide. He served his sentence but was released early for good behavior.

After his interview before the US Embassy in Manila, Felix was not issued his immigrant visa because of his criminal conviction for attempted homicide. This is only a temporary setback for Felix. Felix could still be issued if his immigrant visa if he files for a waiver and show the following:

That the activity which would make him inadmissible occurred more than 15 years from the date of his visa application;

That his admission to the United States will not affect the welfare, security, and safety of the country;

That he is fully rehabilitated.

Alternatively, Felix could also show that his US citizen spouse will also suffer extreme hardship should he not be allowed to join her in the United States.

Since the grant of a waiver involves the exercise of discretion by the Department of Homeland Security (DHS), it is important that the applicant submits a complete and well documented waiver application to convince DHS that he is worthy of being issued an immigrant visa.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com.

Voluntary Departure As An Alternative to Deportation

By: Dennis E. Chua, Esq.

Individuals who are in the country unlawfully and who would just like to leave the country may request for voluntary departure. The US government has viewed the grant of voluntary departure as a privilege given to individuals who wish to avail of this relief. Since the grant of voluntary departure is a privilege, the government can dictate the terms of the grant of voluntary departure.

The request may be made before the US Department of Homeland Security if a person has not been put in removal/deportation proceedings. If the person has been issued a Notice to Appear and is now in removal/deportation proceedings before the Immigration Court, the request for voluntary departure should be made before the Immigration Court.

A person who is not in removal proceedings may be granted up to 120 days by the Department of Homeland Security if the person agrees to leave the country at his own expense instead of being put in removal proceedings.

Once a person has been put in removal proceedings, he may request for voluntary departure either before the proceedings are completed or at the conclusion of the proceedings as a primary or alternative relief.

If voluntary departure is requested during the initial stages of removal proceedings, the Immigration Court may grant a person up to 120 days within which to leave the country voluntarily. The person must show that he has the proper travel document to leave the country and that he has or will be able to make travel arrangements for his departure.

If voluntary departure is requested at the completion of removal proceedings, the immigration court can grant the individual no more than 60 days to depart the country voluntarily.

There are however, severe consequences if a person fails to leave the country within time period specified for voluntary departure. The person who fails to leave may be subjected to a monetary fine of up to $5,000 and will be barred for ten years from seeking any other relief such as adjustment of status, change of status, cancellation of removal and voluntary departure.

Since the penalties for failing to depart within the period of time specified in the grant for voluntary departure are quite severe, a person must carefully consider the consequences of a voluntary departure order before opting to request for the relief of voluntary departure.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com.

Unlawful Presence and the 3/10 Year Bars

By: Aurora Vega-Buzon, Esq.

Regina from the Philippines and Sergio from Panama are both spouses of U.S. citizens with approved spouse petitions. Both have immigration histories – Regina came as a tourist in 2008 and overstayed for 10 months before going home in 2009; Sergio crossed the border in 2003 and worked in the U.S. for 4 years before finally going home in 2007. Both have been interviewed by the US embassies in their respective countries and have been denied immigrant visas as both have been, in the past, unlawfully present in the U.S.

Unlawful presence (ULP) is defined as (i) presence in the U.S. after the expiration of the period of stay authorized by the Secretary of Homeland Security (POSA), or any presence (ii) without being admitted or (iii) paroled. A person who crosses the border without inspection, like Sergio – commonly known as “EWI” – is unlawfully present from the date of arrival. A person “paroled” into the U.S. (a permanent resident returning from a trip abroad but who may be subject to inadmissibility and/or deportability because of crimes, or some defect in his permanent resident status; or some other non-immigrant who is only allowed to enter the U.S.) is not “admitted” in an authorized stay – and once the period of parole expires, will start to accumulate unlawful presence (ULP). Also, a conditional permanent resident who fails to file a petition to remove conditions accrues ULP from the day after his conditional status expires, unless a late petition is subsequently accepted and approved. Any person coming into the U.S. as a non-immigrant (tourists, persons with H-1B working visas, investors, L intra-company executives or managers, K1 fiancé/es, etc.) is given an I-94 which contains the period of authorized stay (POSA). A non-immigrant will accumulate ULP on the day after the I-94 expires. If an extension of stay or application for an immigration benefit is filed within the POSA, ULP will accrue the day after USCIS denies the extension or benefit.

ULP becomes important when people like Regina and Sergio seek any immigration benefit in the future. Regina is subject to the 3-year bar and will only get her immigrant visa in 2012 – 3 years after she left the U.S. Sergio is subject to the 10-year bar and will not get his immigrant visa until 2017, 10 years after he left the U.S.

Regina is inadmissible (not entitled to a visa or entry into the U.S.) because she is an “alien who was unlawfully present in the U.S. for a period of more than 180 days but less than 1 year. . . and who again seeks admission within 3 years of the date of such alien’s departure or removal.” Her ULP was more than 180 days but less than 1 year.

Victor’s ULP is more than 1 year and is inadmissible as he was “unlawfully present in the U.S. for one year or more, and who again seeks admission within 10 years of the date of such alien’s departure or removal.”

The 3/10-year bars apply only if the alien departs the U.S. – thus, the bars are triggered only if the person has over 180 days of ULP and then departs the U.S. If Regina remained in the U.S. and filed for adjustment application because of her marriage to a U.S. citizen, there is no 3-year bar as she did not depart the U.S.. However, in the case of Victor, if he remained in the U.S. and filed for adjustment because of marriage, he is still ineligible to get a green card as aside from his ULP, he is also an EWI – he entered without inspection.

Regina and Victor’s spouses should consult an immigration attorney to find out if available waivers to waive the 3/10-year bars and shorten their wait to get their immigrant visas.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Proposed Provisional Wavier of Unlawful Presence

By: Aurora Vega-Buzon, Esq.

USCIS has published a very important proposed change in processing petitions for certain alien relatives called “Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives”. How does this proposed change affect you?

Current Rule. A United States citizen who wants to sponsor his alien spouse, parent or minor child (under 21 years old and unmarried) must first file a petition for an alien relative (I-130). Upon approval, such alien spouse, parent or minor child can file for “adjustment of status” to that of a green card holder, if present in the Unites States; or if abroad, receive an immigrant visa from a United States Embassy. However, there are certain grounds why an alien spouse, parent or child – who is already in the United States – cannot be approved for adjustment of status and be granted a green card, for example: 1) alien entered without inspection or admission (alien illegally crossed over and did not go through border inspection/admission); or or 2) alien entered as a fiancé/e or child of a fiance/e and did not marry the United States citizen who filed the fiancé/e petition; or 3) alien entered as a crewman. Thus, the alien spouse, parent or child must depart the United States to get an immigrant visa at the United States Embassy in his home country, and return to the United States to be admitted as an immigrant. The problem is, once the alien departs the United States, he will be barred from getting an immigrant visa for either 3 or 10 years, if he has been unlawfully present in the United States for more than 6 months, or more than 1 year. Thus, the alien’s required departure for the visa interview, is the very action that triggers the 3/10 year bars. The alien needs to file an Application for Waiver of Inadmissibility (I-601) with the Embassy, and must show “extreme hardship” to a qualifying relative to waive the bar. Waiver processing takes almost a year or longer; and if denied, the alien spouse, parent or child is stuck outside the United States for 3 or 10 years, before re-applying for an immigrant visa.

Proposed Rule. USCIS proposes a rule that will allow immediate relatives of United States citizens and certain other aliens, while in the United States – to file for unlawful presence waivers with the USCIS; and if approved, the alien will be granted a “provisional unlawful presence waiver”, which will become effective upon the alien’s departure from the United States and a determination by a United States Embassy that the alien is not subject to any other ground of inadmissibility other than unlawful presence and because of the provisional waiver, will be given an immigrant visa.

Who Will Benefit. The proposed rule is limited to the “Immediate Relatives” of United States citizens (who must be at least 21 years old), namely: 1) Spouses; 2) Parents; and 3) Unmarried children under 21 years of age. Also included are specific classes of individuals: 4) certain Surviving Spouses and Children of United States citizens; 5) Self petitioners; 6) Aliens entitled to conditional permanent resident status based on marriage to a United States citizen which is less than two years.

Conditions for Eligibility. To be eligible for the provisional waiver of inadmissibility, an applicant alien must show: i) he is one of the above classes of aliens; 2) he is the beneficiary of an approved immediate relative petition; 3) he is age 17 or older; 4) he is currently present in the United States but cannot become a permanent resident unless he departs and get an immigrant visa abroad; 5) that upon departure, he will be subject to the 3 year or 10 year unlawful presence bars and will become inadmissible only on that sole ground; 6) he has paid the immigrant visa processing fee with the State Department and has not yet been scheduled for a visa interview at the Embassy; and 7) his United States citizen spouse or parent will suffer “extreme hardship” if the waiver application is not granted.

Bear in mind that the provisional waiver rule is just a proposal at this point. Once the rule is final, we still have to wait for USCIS to issue implementing rules and regulations and announce an effective date for accepting applications.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Prosecutal Discretion

By: Aurora Vega-Buzon, Esq.

On June 17, 2011, U.S. Immigration and Customs Enforcement (ICE) Director John Morton issued a Memorandum to provide guidance on the exercise of prosecutorial discretion (the Morton Memo). “Prosecutorial discretion” is the authority of a law enforcement agency or officer charged with enforcing a law to decide, in a particular case, whether – and to what degree – to enforce the law. A law enforcement officer who decides not to enforce the law against a person has favorably exercised prosecutorial discretion.

Scope of Prosecutorial Discretion. Prosecutorial discretion is not an affirmative application of an immigration benefit. It applies in the law enforcement context only, exercised with respect to removal proceedings (including the decision whether to place a person in proceedings); detention; parole; and the execution of removal orders. In simple terms, it means – “if you are deportable, will the government pursue the case against you now?” Both ICE and the U.S. Citizenship and Immigration Services (USCIS) have the authority to exercise prosecutorial discretion. Prosecutorial discretion can be exercised on either an agency-wide basis or by an individual officer or employee. When ICE adopts priorities streamlining its enforcement efforts, for example, it is exercising prosecutorial discretion as an agency with respect to how to spend its resources. In contrast, a USCIS officer who decides to cancel a Notice to Appear (NTA) – which is a document charging an alien with deportation/removability – as improvidently issued, is exercising favorable prosecutorial discretion on an individual basis. Prosecutorial Discretion can be exercised at any stage of the proceedings – prior to filing an NTA (or a decision not to issue an NTA), while the noncitizen is in removal proceedings (a grant of deferred action), after issuance of a removal order (stay of removal).

Factors Considered in Exercising Prosecutorial Discretion. The Morton Memo lists several factors for ICE officers to consider when deciding whether to exercise prosecutorial discretion, which includes but is not limited to: 1)Criminal history – the nature and severity of any criminal conduct, the time elapsed since the offense occurred and evidence of rehabilitation, and whether the alien is a repeat offender. 2) Immigration status: Lawful permanent residents generally warrant greater consideration. 3) Length of resident in the United States: The longer an alien has lived in the United States, particularly in legal status, the more this factor may be considered a positive equity. 4) Humanitarian Concerns: Relevant humanitarian concerns include, but are not limited to, family ties in the United States; medical conditions affecting the alien or the alien’s family. 5) Immigration history: Aliens without a past history of violating the immigration laws warrant favorable consideration to a greater extent than those with such a history.

USCIS Policy Memorandum. Notwithstanding the Morton Memo, USCIS itself has issued an internal policy memorandum on November 7, 2011 that establishes guidelines for referring cases to ICE and issuing NTAs. The USCIS Memo has a broader scope than outlined in the Morton Memo, and in fact seems to cut into the very core of prosecutorial discretion as established by the Morton Memo and its predecessors. For example, according to the said November 7, 2011 Memo, USCIS will refer all cases involving Egregious Public Safety (EPS) to ICE. An EPS case is a case where information indicates the alien is under investigation for, has been arrested for (without disposition), or has been convicted of: Murder, rape, sexual abuse of a minor, offenses relating to explosive materials or firearms, crimes of violence for which the term of imprisonment imposed, or where the penalty for a pending case, is at least one year. This list is not exhaustive. Thus, according to the USCIS Memo, a mere investigation into an alien’s involvement with any of the listed “egregious” crimes, even if it does not lead to an arrest, or even a mere arrest while awaiting proper disposition by a court, will be referred to ICE for an issuance of an NTA.

What a Favorable Grant of Prosecutorial Discretion Means for You. A favorable grant of prosecutorial discretion does not confer lawful immigration status or alter the person’s existing immigration status. For example, a deferred action by either ICE or USCIS, is a decision not to pursue enforcement against a person for a specific period of time, in the exercise of the agency’s prosecutorial discretion. This is the same with the decision not to issue an NTA. A grant of deferred action – or any other favorable exercise of prosecutorial discretion – does not affect any already existing period of unlawful presence. However, periods of time in deferred action do qualify as periods of stay authorized.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Please Release Me….Bond Determination

By: Dennis E. Chua, Esq.

We hear stories about agents of the US Immigration and Customs Enforcement (ICE) conducting dawn raids on private residences and business establishments looking for criminal aliens and visa violators. Many individuals who happen to be in that area and are not even the target of these raids have been included in these immigration sweeps. These sweeps have resulted in the arrest and detention of non-citizens of the United States

Pertinent US laws provide that on a warrant issued by the Attorney General through ICE, a non-citizen may be taken into custody and detained pending a decision on whether the non-citizen is to be removed from the United States.

Detention of non-citizens by ICE has become the country’s fastest growing form of incarceration of individuals. The Associated Press has reported that nationwide, deportations jumped to more than 387,000 in the same period – an increase of 65 percent over the previous year.

Once the non-citizen is taken into custody and detained, ICE will begin processing the non-citizen for removal. ICE shall issue a Notice to Appear which is a document informing the non-citizen of the immigration charges against him and that he needs to appear before an immigration judge for a removal hearing.

The person detained may be released from ICE custody after posting the requisite bond. However, not all persons detained can be released from ICE custody. Some individuals will be subject to mandatory detention and therefore cannot be released on bond or recognizance.

The local district office where the individual is detained makes the initial custody and bond determination. If the non-citizen shows that he or she is not a danger to the community or a flight risk, the district office may set bond at the minimum which is $1,500. There are instances where the district office can release the person at his own recognizance.

If the local office does not make a bond determination and the person detained is not released, the non-citizen may request for a bond determination before the Immigration Court to obtain his release.

The non-citizen may also request for a bond re-determination before the Immigration Court to ease the conditions of the release or to lower the bond set by the local office.

There are two ways for friends and family members of the person detained to post bond. They may either pay the full amount in the form of a money order or cashier’s check directly to the Department of Homeland Security or go through an authorized bond or surety company. These companies usually require a fee of 10% of the bond amount which is non refundable and a home with sufficient equity.

The bond is set to guarantee the appearance of the non-citizen in all hearings before the immigration court. If the individual fails to appear, the bond will be forfeited.

As an alternative to detention or the release of an individual on bond, the non-citizen may be subjected to ICE’s Intensive Supervision Appearance Program or ISAP. Under this program, ICE monitors participating individuals using the following methods: telephone reporting, radio frequency, global positioning system (GPS), and unannounced home visits.

Requesting for bond determination is only the beginning of the individual’s removal process. The individual must therefore know his rights and the reliefs that may be available to him in order to fight his removal in proceedings.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277;Dchua@ctvattys.com.

Detention of Non-US Citizens While in Proceedings

By: Dennis E. Chua, Esq.

Non US citizens including lawful permanent residents who have committed certain crimes and found to be removable will be subject to the mandatory detention provisions of the Immigration and Nationality Act. The mandatory detention provisions require that these non-US citizens be detained pending the outcome of their removal proceedings. Detention is required even for individuals convicted of crimes as minor as shoplifting or misdemeanors with sentences that may not involve jail time.

Non-US citizens who meet the criteria of the mandatory detention provision will be detained even if they have a relief in removal proceedings. Non-US citizens who come into the initial custody and who are subject to mandatory detentions will be detained and will not be released even if the individual wishes to post bond to secure his temporary release.

The US Supreme Court has upheld the constitutionality of the mandatory detention provisions as not violative of the due process clause. The enactment of the mandatory detention provision has been justified to ensure the attendance of these individuals in their removal hearings and to prevent criminal aliens from the commission of criminal acts.

Such a law is harsh as it penalizes individuals who have truly reformed and have no intention of committing further crimes in the US. It restrains individuals of their right to liberty even if immigration courts have not found them removable. It deprives detained non-US citizens from continuing with their employment to support their families. It prevents non-US citizens to be with their families while their removal cases are being heard.

It is important to note the type of crimes which will subject an individual to mandatory detention and these include among others the following:

Aggravated felonies;

Drug offenses;

Firearms offense;

Commission of two or more crimes involving moral turpitude;

Persons involved in terrorist activity;

Espionage, treason, sabotage;

Commission of a crime involving moral turpitude for which the sentence of imprisonment is at least one year.

Even if the government has found a non-US citizen to be subject to the mandatory detention provision and has refused to release the individual on bond, the individual may still request for a bond hearing and argue that he was not properly included within the mandatory detention provision and avoid the harsh consequences of the law.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com.

Crimes That Make You Deportable

By: Dennis E. Chua, Esq.

Any alien who has been convicted of a crime runs the risk of being deported or removed from the United States. Legal permanent residents who have been convicted of a crime may be included as those who may be removed or deported.

The Immigration and Nationality Act enumerates the types of criminal offenses which would render a person removable or deportable. Among the criminal offenses listed are as follows:

A person who has been convicted of a crime involving moral turpitude within 5 years after the date of admission. A crime of moral turpitude refers to “conduct that is considered contrary to community standards of justice, honesty or good morals.” Some examples of crime of moral turpitude include arson, embezzlement, grand theft, assault with a deadly weapon, manslaughter;

A person who has been convicted of a crime for which a sentence of one year or longer may be imposed;

A person who at any time after admission is convicted of two or more crimes involving moral turpitude;

A person who is convicted of an aggravated felony at any time after conviction. Aggravated felony is a category of crimes that include murder, rape, sexual abuse of a minor;

A person who is convicted of a crime relating to high speed flight from an immigration checkpoint;

A person who has failed to register as a sex offender;

A person who at any time has been convicted of a violation of any law relating to a controlled substance (drug offenses);

A person who is a drug abuser or addict;

A person who has been convicted of a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect or child abandonment.

An alien including legal permanent residents who have been convicted and who have served their sentence as a result of the criminal conviction will have to pass through the US Immigration and Customs Enforcement before they are released. If such alien is removable or deportable, an immigration hold will be issued, and the person will be detained for the immigration violation. Bail may be posted to secure the temporary release of such person from immigration detention.

The person shall then be put in removal proceedings with the issuance of the corresponding Notice to Appear. The Notice shall inform the person of his immigration violation and why he or she is being removed from the United States.

Depending on the type of criminal offense committed, a person may be eligible to file for a waiver to prevent removal or deportation in Immigration Court. A grant of a full and unconditional pardon by the President of the United States or by the Governor of any of the several states may also prevent the removal or deportation of a person for certain criminal offenses.

In order to avoid the harsh consequences of removal as a result of a criminal conviction, it would be best that once criminal charges have been filed, a person immediately consult with an immigration practitioner regarding the immigration consequences of a criminal offense.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com

Crime and Punishment

By: Aurora Vega-Buzon, Esq.

If you are not a United States citizen, and you commit a crime or admit to acts constituting a crime, you may be deported, regardless of whether (1) you completed your sentence and/or you paid the fine; or 2) the crime is merely a misdemeanor; or (3) the crime happened 10 years ago. Deportation is a separate consequence from – and in addition to – the criminal penalty imposed and/or already served.

Consider this: Tony steals a loaf of bread from a bakery, and Johnny steals a similar loaf of bread but punches a store clerk in the process. Under criminal laws, Tony’s punishment is lighter than Johnny’s punishment. This is what we call “proportionality” – the severity of a punishment fits the gravity of the crime. However, under immigration laws, this proportionality concept is skewed against a non United States citizen.

If Tony is a United States citizen (USC), and Johnny is a Lawful Permanent Resident (LPR), the consequences become exponentially harsher for Johnny, who may? be deemed deportable for (1) stealing, and (2) hitting a person in the process of stealing. Some crimes will , with certainty, make even a long-term LPR become deportable. Johnny, the LPR, was convicted of a misdemeanor battery and misdemeanor petty theft, and sentenced to probation and community service sentence for 3 years, which he completed. Five years later, he travels outside the United States for a vacation. Upon his return, the California Border Patrol (CBP) at Los Angeles International Airport brought him into a room and served him a Notice to Appear (NTA), placing him in removal (deportation) proceedings, alleging that he is inadmissible based on the commission of the 2 crimes he committed 5 years ago.

Pleadings and Records of Conviction. The Immigration Court is permitted to review, in removal proceedings, only a narrow, specified set of documents regarding Johnny’s conviction. This is what is called “record of conviction” and is limited to only the following: the charge/s or complaint or indictment; a signed plea agreement or the transcript from the plea proceedings; jury instructions; and the judgment of conviction.

What a non-citizen pleads to is very important. The public defender or defense counsel should ask Johnny if he is a USC or an LPR, and at the very least consult with an immigration attorney regarding possible immigration consequences that might or will result from making a plea of “guilty” or “nolo contendere” (no contest). Johnny should make it known to his defense counsel or public defender that he is an LPR and not a US citizen, and must be fully informed of the consequences of his plea before signing the plea agreement.

The consequences of an ill-informed or ill-advised plea and possible removal arising from such plea, are drastic and disastrous, potentially divesting a non-citizen of his LPR status and taking him away from his family and loved ones in the United States. As noted by the U.S. Supreme Court in the landmark case of Padilla v. Kentucky, “deportation is a ‘particularly severe penalty,’ not a mere collateral consequence of the criminal conviction.”

In order to avoid the harsh consequences of removal as a result of a plea and criminal conviction, it is best that once criminal charges have been filed, a non-US citizen should – and before making a plea – immediately consult with an immigration practitioner regarding the consequences of making a guilty or no contest plea, and possible removal (deportation) after his criminal case is completed.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Immigrating as a Foreign Worker (Part II) Working While Waiting for Your Priority Date

By: Aurora Vega-Buzon, Esq.

Foreign professionals wishing to immigrate to the US (as permanent residents) may do so under 3 general classifications:

1. 1st Preference (EB1) – extraordinary ability foreign professionals; outstanding researchers and professors; and multinational executives and managers known as “priority workers”

2. 2nd Preference (EB2) – foreign professionals with advanced degrees and professionals of exceptional ability in the sciences, business or arts

3. 3rd Preference (EB3) – foreign professionals (those with BS or BA degrees) and skilled workers (including nurses)

Except for EB1, all workers need to go through a labor certification process which is now being done under what we call PERM (Program Electronic Review Management). Our previous articles have discussed labor certification/PERM, the procedures and processing time. In a nutshell, the labor certification/PERM is a process where the Department of Labor certifies there is a shortage in the foreign professional’s intended area of employment or there is no US worker who is able, qualified or willing to perform the proposed employment; and the foreign worker’s proposed employment will not displace a US worker and/or will not negatively impact the labor market.

The date of filing the labor certification/PERM application is the priority date for the sponsored foreign professional. The “priority date” determines when the foreign professional will get an immigrant visa at the U.S. Consulate of the country of his citizenship. If the foreign professional is already in the US, the priority date determines when he can file for his green card through an “adjustment of status” application. Eligibility for adjustment is normally based on maintaining lawful status. Thus, a foreign professional whose stay has expired (whether as tourist, student, H-1B worker, J-1) is NOT ELIGIBLE to adjust unless a prior petition (whether by a family member or a US employer) was filed for the foreign professional either before January 14, 1988 or April 30, 2001. As of September 2010, the priority dates for employment-based categories (including other workers like caregivers, cooks, housekeepers, etc.) are:

Employment- Based All Chargeability Areas Except Those Listed CHINA – mainland born DOMINICAN REPUBLIC INDIA MEXICO

PHILIPPINES

1st C C C C C C

2nd C 08MAY06 C 08MAY06 C C

3rd 15DEC04 22OCT03 15DEC04 01JAN02 U 15DEC04

Other Workers 22MAR03 22MAR03 22MAR03 01JAN02 U 22MAR03

Most foreign professionals immigrate under the EB-3 category, and if they are already in the US, they need to maintain lawful status while waiting for their priority date. Normal wait time for an EB-3 visa is 6 years. There are non-immigrant visas available that allow a foreign professional not only to remain in the US, but also to work; while waiting for his priority date that allows him to file for adjustment/green card application.

H & L Visas

Before or at the same time that a labor certification application is being processed, the foreign professional can be sponsored by a US employer through a petition for a non-immigrant worker – under the following visa categories: H-1B visas are given to foreign professional workers of exceptional skill and merit and there is a US company that requires the services of such a highly skilled worker. 65,000 H-1B visas are given out every October 1st of each year worldwide, but filing starts as early as April 1st every year. Once the H-1B petition is approved, the foreign professional can apply for an initial 3-year H-1B visa in his home country, or change his status if he’s already in the US, renewable for another 3 years – for a total of 6 years. L-1A visas are available to executives and managers of a “multinational company” – an international company with offices in both a home country and the U.S., or which intends to open a new office in the U.S. while maintaining its home country interests. The visa allows such executive or managerial workers to relocate to the corporation’s US office after having worked with the related foreign company abroad, for a continuous period of at least 1 year within the 3 years before the filing of the L-1A application. L-1A visas are valid for an initial period of 3 years with 2 year extensions but with a total maximum period of 7 years. L-1B visas are available to specialized knowledge employees of a “multinational company. The visa allows such specialized knowledge workers to relocate to the corporation’s US office after having worked abroad for the company for at least 1 year prior to being granted L-1B status. L-1B visas are valid for an initial period of 3 years with 2 year extension, with a total 5 years maximum stay. E Visa A foreign professional can also apply for an E-2 visa available for investors who substantially invests in a new or ongoing business in the US. “Substantial investment” is at least $100,000 or more. To qualify as an E-2 investor, the foreign professional (or any investor) must “develop and direct” an investment enterprise, under and pursuant to a treaty of commerce and navigation between the U.S. and the foreign state of which he is a national. The sole purpose is to “develop and direct” the operations of an enterprise in which the foreign professional/investor must have or in the process of investing a “substantial amount of capital”. which should be over 50% ownership of the enterprise. For small or newly created enterprises, ownership should be 75-100%. There is no limit of stay for an E-2 investor as long as the business is ongoing. Spouses and Minor Children of H, L or E The spouse and/or minor children of an H, L or E visa holder can accompany the foreign professional as dependents and enter the U.S. either on H4, L2 or E2 visas for the duration of the visas of the principal H, L or E holder. H4 spouses or children cannot work in the US. L2 spouses can work with USCIS authorization, but not L2 children. E-2 spouses can also work in the US with USCIS authorization but E-2 children are not allowed to work with their E-2 classification. Any violation of status by a dependent spouse or child of an H, L or E may render such dependents ineligible to file for adjustment/green card application.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Investing in America

By: Dennis E. Chua, Esq.

Individuals who wish to enter and stay in the United States for the purpose of doing business in the country may apply for an investor’s visa.

To illustrate, we present this factual scenario. Jose is a businessman in the Philippines and he wants to diversify his business interests by opening a business in the United States. Jose is planning to open up a restaurant business in the United States. Jose intends to direct the operations of the business during its infantile stage. While setting up and developing the business, Jose would like to bring his wife and two minor children with him.

Jose may apply for an investor’s visa so that he could enter and stay in the United States to direct and develop his business. Jose may apply directly for an investor’s visa with the US Embassy in Manila or apply for a change of status if he is currently in the United States. Jose needs to show the following before his application may be approved:

• He is a national of a country which has a bilateral investment treaty with the United States;

• He will be entering the United States to develop and direct the operations of an enterprise;

• He has invested or is actively in the process of investing money into a bona fide commercial enterprise which he seeks to establish or has been set up;

• The amount that he has invested or will be investing is a substantial amount as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living;

• He is qualified to develop and direct the operations of the business; and

• He is willing to depart the United States after he has accomplished his business purposes.

We are frequently asked by prospective investor visa applicants as to how much amount of money is needed to be invested in a bona fide enterprise for an investor’s visa application to be approved. The substantiality of the amount to be invested would depend on the nature of the business. A commercial enterprise which will be engaged in the business of buying and selling real estate will need not be viable with an initial investment of $25,000.

As for the type of business to be established, the USCIS will approve investor’s visa applications for any type of business, so long as we can show that the commercial enterprise is a bona fide business entity. The USCIS has approved investor’s visa applications for commercial enterprises engaged in the following types of businesses: restaurants, care homes, freight forwarding, food marts; commodities trading consultancy.

Once the principal investor visa applicant has been issued an investor’s visa, the spouse and minor children of the principal investor visa holder can be issued their corresponding visas as dependents of the principal visa holder.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com

Green Card Through an Employer

By: Dennis E. Chua, Esq.

A person can obtain permanent residency in the United States if he or she has been petitioned by a family member who is either a US citizen or legal permanent resident. US citizens can file an immigrant petition for their spouses, children (whether single or married), parents, brothers and sisters. While US legal permanent residents can only file for their spouses and unmarried children. How fast a beneficiary can come into the United States will depend on the immigration status of the petitioner and the preference category the beneficiary will fall under.

Aside from a family based petition, a person can obtain permanent residency in the United States if a US employer sponsors the individual. For most employment based petitions, the process is initiated with the filing of an application for labor certification with the US Department of Labor by the employer. The US Department of Labor is the government agency tasked to determine whether US workers will be displaced if the position is offered to the beneficiary. The US employer must conduct good faith recruitment and show that there is no qualified US worker for the offered position before a labor certification application can be filed with the US Department of Labor.

Once the application for labor certification is filed and certified by the US Department of Labor, the US employer has one hundred eighty (180) days to file an immigrant petition with the US Citizenship and Immigration Services (USCIS.) In reviewing the immigrant petition filed by the US employer, the USCIS will look into whether or not the US employer has the financial ability to pay the offered wages of the beneficiary. The USCIS will also verify if the beneficiary meets the minimum requirements of the offered position.

After the immigrant petition is approved by the USCIS and the priority date for the petition is already current, the beneficiary can now file for an application for adjustment of status with the USCIS if he or she is in the United States and eligible to file for the application; or undergo consular visa processing if the beneficiary is outside the United States. Just like the family based immigrant petition, the employment based immigrant petition has several different categories and each preference category will depend on the type of position being offered to the beneficiary. How fast a sponsored individual can get his green card will again depend on the preference category of the employment based immigrant petition.

Some employment based immigrant petitions need not go through the labor certification application process. These are for positions which have been classified by the US Department of Labor as shortage occupations and they include nurses and physical therapists. Since these positions are pre-certified, the US employer will just have to file the immigrant petition with the USCIS to start the employment based immigrant petition process.

Despite the economic downturn, US employers continue to sponsor qualified individuals for permanent residency because of their need for the skills of these workers. The positions which US employers continue to file for sponsorship include engineers, accountants, teachers, systems analysts, and caregivers.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com.

Employer’s Ability To Pay in Hiring Foreign Workers

By: Jean S. Tinsay, Esq.

An employer need not be a Fortune 500 company, have been in business for decades or employ dozens of workers in order to sponsor an alien to work for its company in the United States. While the bigger and more stable companies would certainly qualify to sponsor an alien for employment in the United States, so too would smaller businesses, sole proprietors and even individuals provided they can comply with the USCIS requirements for employment-based immigrant petitions on behalf of alien workers. For example, a sole proprietor who owns a home for the elderly can hire caregivers abroad or even an individual who is in need of a nanny for her children.

A showing that the employer is financially able to pay the salary of the alien worker is one of the important requirements in filing an employment-based immigrant petition. The employer’s ability to pay alien worker’s salary must be demonstrated from the time the priority date is established (date the labor certification application or immigrant petition is filed on behalf of the alien worker) and continuing until the alien worker obtains U.S. permanent lawful residence status.

For large companies employing 100 workers or more, the financial ability to pay requirement can be met by simply providing the USCIS with a statement from the employer’s financial officer establishing their ability to pay the wage offered to the alien worker.

However, for employers with less than 100 workers, financial ability has to be established and proven. This can be done by submitting copies of (i) annual reports, (ii) federal tax returns or (iii) audited financial statements. In reviewing these documents, the USCIS will make a positive determination of ability to pay in the following instances:

(i) when employer’s net income is equal to or greater than the wage offered to the alien;

(ii) when net current assets are equal or greater than the wage offered to the alien; or

(iii) When the records contains credible verifiable evidence that the employer is currently employing the alien and pays the alien the offered wage.

The USCIS will also accept additional documents such as the employer’s profit/loss statements, bank account records, or personnel records. If employer is a sole proprietor, the USCIS will consider the individual personal assets and liabilities in determining whether it meets the ability to pay requirement.

If the employer’s documents are not sufficient to establish financial ability to pay, the USCIS may take into account certain discretionary factors in determining whether the employer meets the ability to pay requirement.

In one case, the USCIS was not deterred in finding that the employer had the ability to pay the wage offered to the alien despite the fact that the employer’s net income was substantially less than the wage offered to the worker by considering employer’s “reasonable expectations of continued increase in business and increasing profits.” In determining that the employer had the ability to pay the alien’s wage, it took into account the following factors: (i) length the employer had been in business; (ii) employer’s ability to pay the salaries of its current workers without evidence of financial difficulties; (iii) (that) the addition of the worker would substantially increase employer’s business; and (iv) (that) the employer was well recognized as evidence by numerous articles published in magazines.

In another case, the USCIS considered the ability of the employer to generate income in determining what is suitable evidence to demonstrate financial ability to pay the alien worker’s salary.

The employer’s ability to pay is only one of the requirements to be met before the USCIS will favorably decide an employment-based immigrant petition. There are other requirements that must be complied with. Filing an employment-based immigrant petition is a long and complicated process and best done with the assistance of an immigration attorney.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com

New Law Gives Green Card to Widows and Relatives of Deceased Petitioners

By: Dennis E. Chua, Esq.

On October 28, 2009, President Obama signed into law a bill which ended the so-called widow penalty. Before the passage of this law, widow(ers) of US Citizens will not be able to get their green cards if they have not been married for at least two years. For those who have been married for two years, they can self-petition and eventually get their green cards if they can show that their marriage to the US citizen spouse was bona fide. For those US citizen spouses who died before the marriage has existed for at least two years, their surviving spouses are subject to the so-called widow penalty. The petitions filed for them will result in their automatic denial and these widows faced the threat of deportation. As discussed in our previous article, the US Citizenship and Immigration Service has issued a Memorandum on June 15 2009 which provided guidance as to how these widows can stay despite the death of their US citizen spouses, to temper the harsh effect of the widow penalty.

With this new law, it now removes the two-year marriage requirement from the current law and now allows these widows to self-petition. They would still however need to show that the marriage was entered into in good faith. Unmarried children below 21 years old of the widow(er) may be included in the self-petition that is filed for the widow(er).

This new law benefits all widow(ers) whether they are currently here in the United States or outside the country. There are deadlines which need to be met in filing the self-petition. These widow(ers) whose spouses died prior to the enactment of this law must file their self-petitions within two years from the law’s passage or until October 28, 2011. Widow(ers) whose spouses died after the passage of the law must file their self-petitions within two years of the citizen’s death.

This new law also benefits other relatives of deceased petitioners. The new law added a new section to the US Immigration and Nationality Act and allows certain relatives to have their petitions or green card applications decided despite the death of their petitioning relative. In order to qualify under this section, the following conditions must be met:

a) The petition must have been filed prior to the death of the petitioner;

b) The beneficiary or derivative beneficiary resided in the U.S. at the time of the death of the petitioner;

c) The beneficiary or derivative beneficiary continues to reside in the US.

The law enumerates those relatives who are included, and they are as follows:

a) Immediate relatives (spouse, parent, minor, child of a US citizen);

b) Unmarried son or daughter of a US citizen;

c) Married son or daughter of a US citizen;

d) Spouse or child of a legal permanent resident;

e) Brother or sister of a US citizen;

f) Employment based dependents or derivative beneficiaries;

g) Beneficiaries of refugees/asylee relative petitions;

h) Nonimmigrant in T or U status;

i) Asylees.

We welcome the passage of this new law as it eliminates the harsh consequences of the widow penalty and benefits certain survivors of deceased petitioners who are here in the United States. Although the law will not cover all survivors of a deceased petitioner, the passage of the law is a step forward in removing the inequities of the current immigration law.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com.

USCIS Issues New Memo For Surviving Relatives of Deceased Petitioner

By: Dennis E. Chua, Esq.

The US Citizenship and Immigration Services has long taken the position that once the petitioner dies, the petition can no longer be approved even if the petition was filed before the death of the petitioner.

This long standing policy has now changed with the enactment of Public Law 111-83 on October 28, 2009. Notwithstanding the death of the petitioner, the new law permits the approval of a visa petition, as well as any adjustment application and related application to be approved if the surviving relative meets the following requirements:

• Resided in the United States when the petitioner relative dies;

• Continues to reside in the United States on the date of the decision on the pending petition or application; and

• Is at least one of the following:

– The beneficiary of a pending or approved immediate relative visa petition;

– The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries;

– Any derivative beneficiary of a pending or approved employment-based petition;

– The beneficiary of a pending or approved Refugee or Asylee Relative petition;

– An alien admitted as a derivative “T” or “U” nonimmigrant; or

– A derivative asylee applicant.

The new law applies to any immigrant visa petition, or application decided on or after October 28, 2009, even if the petition or application was filed before that date. For petitions which have been decided before the enactment of the law, the USCIS still maintains the position that these approved petitions are automatically revoked with the death of the petitioner, and that a humanitarian reinstatement request is needed before a petition can be continued.

However, the new policy memorandum adopted by the USICS takes a more liberal approach by allowing humanitarian reinstatement of a revoked petition so long as the surviving relative meets the requirements of the new law without showing other equities that may be available. The memorandum also allows surviving relatives whose petitions have already been denied the opportunity to have their cases re-opened and to renew their request for the reinstatement of the revoked petitions under the new law.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com

Humanitarian Reinstatement: When Petitioner Dies and You Are Not Covered by the New Law

By: Jean S. Tinsay, Esq.

Several months ago, we devoted several articles discussing the applicability and coverage of Public Law 111-83. The new law while it provides a much welcome relief to many still excluded many more surviving relatives whose visa petitions or applications are still deemed automatically revoked or denied by virtue of the death of their relative petitioner.

To recap, Public Law 111-83 which was enacted into law on October 28, 2009 permits the approval of a visa petition or adjustment of status application and related applications even if the petitioner dies provided the alien beneficiary (i) resided in the United States when the qualifying relative dies; and (ii) continues to reside in the United States on the date his or her petition or application is decided.

Unfortunately, there are plenty of alien beneficiaries who were not residing in the United States when their U.S. citizen or permanent relative petitioner dies. For them, the new law’s reach is not far enough. For these alien beneficiaries, relief may still be available to them under a long standing USCIS regulation that provides the USCIS with the discretion to decide not to revoke the approval of an approved immigrant petition for “humanitarian reasons.”

Thus, for alien beneficiaries who were not residing in the United States when their petitioner relative dies, a “humanitarian reinstatement” maybe the last recourse available — the only remaining hope they have that the immigrant petition filed on their behalf survives. To request for humanitarian reinstatement, the alien beneficiary must submit a written request for reinstatement of the revoked petition to the USCIS service center or field office that approved the petition. The grant of reinstatement is discretionary. The factors that the USCIS considers in deciding whether to approve requests for humanitarian reinstatement are the following:

1. The impact of revocation on the family unit in the United States, especially on the beneficiary’s U.S. citizen or lawful permanent relatives living in the United States;

2. The beneficiary’s advance age or poor health;

3. The beneficiary’s having resided in the United States lawfully for a lengthy period;

4. The beneficiary’s ties to his or her home country; and

5. Significant delay in processing the case after approval of the petition and after a visa number has become available, if the delay is reasonably attributable to the Government, rather than the alien.

The grant of humanitarian reinstatement by the USCIS does not do away with other eligibility requirements. For example, the alien applicant still has to wait for the visa number to be available in his or her preference category and in cases of immediate and family-based preference immigrant petitions that require the submission of an affidavit of support, the alien beneficiary will be required to submit an affidavit of support from a substitute sponsor.

To qualify as a substitute sponsor, the sponsor must be related to the alien beneficiary as his or her spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years of age), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, or grandchild.

Atty. Jean S. Tinsay is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; jtinsay@ctvattys.com

Visa Fraud and False Claim to United States Citizenship

By: Aurora Vega-Buzon, Esq.

Twenty years ago, Abel who was 20 years old, entered the United States using his cousin’s passport which has a United States visa. They looked alike and were the same age. He overstayed his tourist stay but went home after one year. Ten years later, Abel re-entered the United States on a student visa, now using his real name. He later married his classmate, a United States citizen. They submitted a spouse petition and Abel’s adjustment application for permanent residence. During the interview, and thinking that it happened so long ago, Abel disclosed having entered the United States using his cousin’s passport and identity.

Five years ago, Marcela entered the United States on a valid one year tourist visa and was given three months of authorized stay. It was before Thanksgiving at the start of the holiday season, and her aunt told her she can get her a part-time job at the big discount store in New York where she (aunt) worked. Marcela filled out an application form and upon her aunt’s direction put “U.S.” in the box asking for her citizenship. After the holidays, the store decided to hire Marcela permanently and was again asked to fill up some forms – this time, the immigration form I-9. Marcela also started dating a handsome co-worker and within the year, they got married. The spouse petition filed by her husband was approved, but Marcela’s adjustment application was denied. USCIS investigation revealed that in the I-9 (the second form Marcela filled-up), Marcela checked the box for “U.S. Citizen or National.”

Abel’s misrepresentation twenty years ago constituted visa fraud. Marcela’s misrepresentation is more serious – a false claim to United States citizenship.

Visa Fraud. A United States visa is a document, obtained at any United States embassy or consulate, granting a non-U.S. traveler permission to apply for admission into the United States at a port of entry. A United States visa authorizes the border official to grant the alien holder entry into the United States, but does not guarantee entry into the United States.

An alien who, by fraud or willfully misrepresenting a material fact, seeks to procure or has sought to procure of has procured a visa, other documentation or entry into the U.S. or other benefit provided under the Immigration and Nationality Act (INA), is inadmissible. This “misrepresentation of material fact” is visa fraud. Other forms or types of visa fraud include: the sale or transfer of otherwise legitimate visas, misrepresentation of reasons for traveling, or forgery or alteration of a visa. Common visa frauds are lying in visa applications, or in answering questions at the port of entry; using someone’s identity or name; presenting a false green card or claiming to be a green card holder at the port of entry; denying that one has children and omitting their names in applications for immigrant or non-immigrant visas; etc.

A misrepresentation is material if disclosure of the truth would have led to an investigation that might have uncovered facts warranting denial of a visa. “Material misrepresentation” is determined on a case by case basis, and the issue of materiality relates to the person’s state of mind. In certain cases, as in Abel’s case, a waiver of inadmissibility is available as a relief to cure his visa fraud committed twenty years ago.

False Claim to United States Citizenship. Falsely claiming U.S. citizenship is where a person falsely represents or has falsely represented himself/herself to be a United States citizen to obtain a benefit under the Immigration Act or any other federal or state law. Examples of falsely claiming U.S. citizenship include: representing to an employer that one is authorized to work in the United States by stating that one is a United States citizen; marking off an I-9 Employment Form that states “U.S. Citizen” after 2009 (I-9 forms prior to August 7, 2009 states “U.S. Citizen or National and there is case law holding that checking this box is not necessarily a false claim to U.S. citizenship); and replying “U.S.” to a question regarding citizenship or country – to a policeman, or immigration officer at the border.

A false claim to United States citizenship is a ground for inadmissibility, and is a permanent bar to admission to the United States, under present laws. This means that an alien found to have made a false claim to United States citizenship is forever barred from immigrating to the United States. What’s more – it is also a ground for deportability. Unlike visa frauds, there is NO waiver available for false claims to citizenship. Alien applicants, as well as green card holders/permanent residents, should be very careful in their representations about their citizenship in any forms, including private employment applications.

Atty. Aurora Vega-Buzon is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; auvega@ctvattys.com

Misrepresentation of Applicant Not Applied

By: Dennis E. Chua, Esq.

An applicant for adjustment of status who commits fraud or misrepresentation when applying for an immigration benefit will be deemed inadmissible and his adjustment application will be denied. However, the applicant may have his fraud or misrepresentation waived if he has a US citizen or legal permanent resident spouse or parent and that qualifying relative will suffer extreme hardship if the applicant is ordered removed from the United States.

The more common cases of fraud being committed are: (1) using a false passport or visa in entering the United States; (2) applying for political asylum and the facts relied upon in the application are not true; (3) Misrepresenting one’s true intention when being admitted to the United States, i.e. a tourist visa holder who intends to work in the United States;(4) filing a CSS/LULAC application by making it appear that the applicant has entered the United States before 1982.

A CSS/LULAC applicant who falsely misrepresents his entry date may not be subject to the waiver requirements before his subsequent adjustment application can be approved because of the confidentiality provisions of the law. To illustrate, we tell you the story of Marco. Marco entered the United States in 1986. He was enticed by an immigration fixer to file for legalization under CSS/LULAC knowing that he was never qualified for it. The fixer made it appear that he entered through the Mexican border and that his entry date was on 1981. Since he was not able to show that he was unlawfully present prior to 1982, the government denied his legalization application under CSS/LULAC. Marco eventually married Catherine, a US citizen. Catherine filed an immigrant petition for Marco who concurrently filed an adjustment application based on this. This time, Marco truthfully indicated in his application that he entered the United States (USCIS) in 1986 as a tourist in San Francisco. The US Citizenship and Immigration Services denied his application for adjustment of status after he filed for a waiver. The USCIS ruled that Catherine will not suffer extreme hardship if Marco is ordered removed from the United States. On appeal to the Administrative Appeals Office (AAO), the AAO reversed the decision of the USCIS denying Marco’s application for adjustment of status. The AAO held that Marco does not need to file a waiver because of the confidentiality requirements of the LULAC law. The AAO then remanded the case back to the USCIS. The USCIS eventually approved Marco’s application for adjustment of status.

Due to the confidentiality provisions of the law, any information collected due to the filing of a LULAC application, even if the statements stated therein are not entirely true, may not be used against an applicant in any subsequent application made before the government.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com

Marriage Fraud Interviews

By: Dennis E. Chua, Esq.

The spouse of a US citizen will be granted permanent resident status after the US citizen files a petition for the spouse. If the spouses have not yet been married for at least two years at the time the petition was filed, the spouse shall be only granted conditional resident status by the USCIS. The conditional resident spouse shall enjoy all the benefits and privileges of a permanent resident. They can work and travel without further authorization from the US Citizenship and Immigration Services. The only difference is that the conditional resident spouse’s status will expire two years from the time permanent resident status was granted. This rule was enacted to give the US Citizenship and Immigration Services another opportunity to look into whether or not the relationship between the spouses is a bona fide one.

Prior to the expiration of the conditional status, both the US citizen spouse and the conditional resident spouse must file another application to have the conditions on residence removed.

If the conditional resident status fails to file the petition to remove the conditions on residence, the permanent resident status will be terminated and in some cases, removal proceedings may be instituted against the conditional resident spouse whose status has already been terminated.

Things may not work out between the spouses before the expiration of the conditional status such that the spouses may have already been living separately. The law requires the both spouses must file (unless the US citizen spouse is deceased) the petition to remove the conditions on residence jointly, unless the following can be shown by the conditional resident spouse: (1) the conditional resident spouse entered the marriage in good faith but the marriage was terminated by divorce; or (2) the conditional resident spouse entered the marriage in good faith but the conditional resident spouse was battered or subject to extreme cruelty by the US citizen spouse.

What then happens to a conditional resident spouse whose marriage has not yet been terminated by divorce and was not battered by the US citizen spouse? Since the conditional resident spouse’s marriage has not yet been terminated by divorce, can the conditional resident spouse file the petition without the US citizen spouse signing the joint petition? Based on a USCIS memorandum, USCIS will allow the conditional resident spouse to file the petition even without the submission of the required judgment showing that the marriage has been terminated. The USCIS will however later issue a Request for Evidence giving the conditional resident spouse around 87 days to submit the divorce decree. Should the conditional resident spouse fail to submit the divorce decree within the time period given by the USCIS, the petition to remove conditions on residence will be denied by the USCIS. The conditional resident spouse will however have another opportunity to present the divorce decree before an immigration judge should removal proceedings be instituted against the conditional resident spouse. If the marriage between the conditional resident spouse and US citizen spouse can no longer be salvaged, the conditional spouse might have to file a divorce petition right away to have the conditional resident status removed in a timely manner

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. The CTV attorneys will be holding regular free legal clinics at the Max’s Restaurant in Vallejo, California. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com

Is it Really True Love?

By: Dennis E. Chua, Esq.

A person who was lawfully admitted to the United States but who failed to maintain lawful nonimmigrant status may still obtain permanent residency if he or she gets married to a US citizen. After the marriage, they may file a concurrent immigrant petition and application for adjustment of status with the US Citizenship and Immigration Service (USCIS) to be able to get the green card.

In one’s desire to quickly get permanent residency, some have resorted to entering into fixed marriages or marriages for convenience. Whatever be the motivation of the parties in entering into this type of arrangement, it still amounts to marriage fraud if at the time of the celebration of the marriage, the parties had no intention of fulfilling the duties and obligations of a husband or wife. Even if the only reason for entering into a fixed marriage was a sincere desire to help the other party and no monetary consideration was given to the US citizen spouse, this will not justify the contracting of such marriage and make the fraudulent marriage a valid one for immigration purposes.

Contracting a sham marriage has serious consequences. For one, the beneficiary of the fraudulent marriage petition will forever be barred from receiving any immigration benefit. To illustrate, John a US citizen married Jenny after being paid $10,000 by Jenny. After the marriage, John and Jenny continued to live apart from each other. They had no intention of living together at the time they got married and the only reason for their marriage was for Jenny to get her green card. After their interview before the USCIS, the officer found their marriage to be a sham one and denied the petition. Jenny subsequently found true love when she met Gary who is also a US citizen. Gary later filed a petition for Jenny but because of the previous finding of marriage fraud, the USCIS denied Gary’s petition for Jenny.

Aside from the serious immigration consequences of marriage fraud, the government can criminally prosecute the parties, and once found guilty, the commission of the crime carries a penalty of five years imprisonment and a $250,000 fine.

The USCIS has recently stepped up its fight against marriage fraud. The USCIS now promptly issues Notices to Appear before the Immigration Court once a finding of marriage fraud has been made. The USCIS will have at least two opportunities to review a marriage if it is a bona fide one after one obtains his or her green card through marriage. Once the petition is approved, the parties would still have to file a joint petition to remove the conditions of residence if the beneficiary was given conditional resident status.

Here, the USCIS will take a second look at the marriage and may subject the parties to another interview. The USCIS will have another opportunity to look into your marriage when you file for your citizenship. The USCIS has now been looking more closely into the bona fides of a marriage even if the applicant is not applying for citizenship based on his or her marriage to a US citizen.

We have heard and seen too many cases where the USCIS has removed people because of marriage fraud. So if it is not true love but a marriage for convenience, better think twice before you say “I do”.

Atty. Dennis E. Chua is a partner in The Law Firm of Chua Tinsay and Vega (CTV) – a full service law firm with offices in San Francisco, San Diego and Manila. The information presented in this article is for general information only and is not, nor intended to be, formal legal advice nor the formation of an attorney-client relationship. Call or e-mail CTV for an in-person or phone consultation to discuss your particular situation and/or how their services may be retained at (415) 495-8088; (619) 955-6277; Dchua@ctvattys.com