Seguritan US Immigration Articles

Domestic Workers and Human Trafficking

Every now and then, tales of horrific abuse suffered by domestic servants make the news. These stories involve people who had come to the United States in search of a better life, at the very least a decent job, but instead found themselves exploited and enslaved, oftentimes by their own kind.

It is difficult to accept that human trafficking still occurs in this day and age but the reality is that it is quite prevalent. Only a few cases get reported, much less prosecuted in court. Two recent reports of domestic worker abuse tell us that slavery is alive even here in the United States.

Last week a Filipino couple from Bellingham, Washington was sentenced to prison for hiring and harboring an illegal alien. The husband and wife were accused of recruiting a Filipina to be their live-in servant, making her work seven days a week, subjecting her to verbal abuse and threats and paying her only $200 to $240 per month. This went on for three years until she escaped the household in September 2009.

The court papers showed that after arriving in the U.S., the victim’s passport and travel documents were confiscated by the couple, and that she worked 18 hours a day, seven days a week. The case began as a deportation proceeding against the domestic worker until the authorities found out that she was a victim of human trafficking.

The couple pleaded guilty to charges of harboring an alien for financial gain and unlawful employment of an alien. The husband was sentenced to 6 months of home detention with electronic monitoring, while the wife was sentenced to four months in prison and 100 hours of community service during 2 years of supervised release. They were also made to pay the victim $57,000 in restitution.

Another recent incident of domestic worker abuse involved live-in caregivers in Southern California. The Filipino husband-and-wife team recruited workers in the Philippines to work at their elder care facility in Paso Robles, California. Some of the aliens worked 24-hour shifts for less than the minimum wage and lived in substandard conditions, with some of them being forced to sleep in sofas and closets. They were threatened with arrest and deportation if they ever tried to escape.

The couple pleaded guilty to conspiracy to harbor illegal aliens and they were made to pay at least $500,000 to the ten victims.

And who could forget the leading forced labor case of U.S. v. Calimlim, which told us of the Filipino maid who for almost twenty years was kept in the basement and hidden by the family from everyone’s view? The defendant couple was recently ordered to pay the victim $1 Million in damages on top of $960,000 in restitution.

The Victims of Trafficking and Violence Protection Act was enacted by Congress in 2000. This law enhanced the protection of trafficking victims by establishing T and U nonimmigrant visa categories for eligible victims who assist in the investigation and prosecution of the criminal activity. Both types of visas can lead to permanent resident status.

The benefits given under the VTVPA are meant to restore the victims’ dignity by meeting their humanitarian needs. By taking away their vulnerability to deportation, the law empowers these victims who in turn help bring traffickers to justice and ensure that civil and human rights are upheld.

New Policy is Not Amnesty but Fewer Will Be Deported

The Obama administration announced last week a new immigration policy that will allow many undocumented immigrants facing deportation to remain in the United States.

In a letter addressed to a group of U.S. senators, including DREAM Act sponsor Sen. Richard J. Durbin (D-Illinois), Department of Homeland Security Secretary Janet S. Napolitano unveiled a policy that will identify low-priority removal cases that should be considered for prosecutorial discretion following previously-issued DHS guidelines on prosecutorial discretion.

Secretary Napolitano stated that an inter-agency working group would conduct a case-by-case review of all individuals currently in removal proceedings to ensure that DHS resources are focused on the government’s highest enforcement priorities.

This policy entails the review of about 300,000 pending court cases. DHS will determine whether each case is a “low priority” or “high priority” case. A case may be considered “low priority” if it meets the factors outlined in the Morton Memo dated June 17, 2011.

“High priority” cases involve aliens who pose risks to the national security or public safety, such as convicted felons. It has been said that almost 80% of deportations involved non-criminals and aliens involved in lower level offenses.

Under the new policy, “low priority” cases may be administratively closed. This means that although an alien is still legally under a removal proceeding, the case is not active and no action will be taken, including future hearings.

The Obama administration has also stated that individuals whose cases are administratively closed would be eligible to apply for a work permit or employment authorization document (EAD).

In an effort to help the public avoid immigration scams, the American Immigration Lawyers Association (AILA), of which this author is a member, has issued an advisory to warn the public that the new policy is not an amnesty program.

Many undocumented immigrants may be tempted to present themselves to authorities in the hope of obtaining work authorization and legal status under the policy. This is a mistake and should not be done without the advice of a qualified immigration lawyer.

Administrative closure is only a temporary suspension of a case, and an EAD only gives temporary permission to work. Neither the administrative closure nor EAD gives legal status.

The AILA warns that there is no safe way of turning oneself in to immigration authorities and that there are no guarantees that a particular case would be considered “low priority” as to be administratively closed. Only immigration authorities can make a finding that a case is “low priority”, and anyone who promises that a case would be found “low priority”, whether a friend, relative, paralegal, notario or even a lawyer, should not be believed.

There have been at least two reported cases of cancelled deportations on account of this brand new policy: a Florida man who came to the U.S. to escape violent gangs in Mexico, and a lesbian from Mexico who is in a same-sex marriage with a U.S. citizen. The fact remains, however, that there are still no details on how the policy will be implemented.

Only cases already pending in court are included in the review and there is still no guidance on whether aliens not yet placed under removal proceedings would benefit from this new policy at all.

Apart from stating that the review will be done on a case-by-case basis and with a view to the totality of circumstances of each case, the DHS has not released guidelines on how the review process will be carried out or any indication on its timeframe for finishing the review of all 300,000 cases.

Furthermore, guidelines on the application procedure and eligibility standard for the EAD have not been issued. In other words, it does not necessarily mean that a “low priority” alien would be eligible for a work permit.

Lauded by immigration advocates, the new deportation policy is expected to benefit thousands of immigrants, including students who would have qualified for relief under the Dream Act had it been passed by Congress, as well as gay and lesbian couples where a spouse faces deportation because their marriage is denied federal recognition.

Humanitarian Reinstatement of a Revoked Family Petition

Beneficiaries of family-based immigrant petitions face lengthy backlogs for visa availability. For example, with the exception of spouses and children of permanent residents (F2A), the waiting period for family sponsored preferences for the Philippines runs from 10 to 23 years.

Given these long waiting times, it is quite possible for the petitioner to pass away between the time of the I-130 approval and the availability of a visa number. The petitioner’s death results in the automatic revocation of the I-130 approval. As a rule, the death of the petitioner results in the death of the petition. For many foreign nationals, this could mean the end of their dream of ever living in the United States.

However, the law gives the USCIS director the discretion not to revoke the approval in instances where revocation would not be appropriate for humanitarian reasons. The I-130 beneficiary may ask for the reinstatement of the revoked petition by submitting a written request for humanitarian reinstatement to the USCIS office where the I-130 petition was filed. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval.

The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.

The beneficiary must have a substitute sponsor who will execute the affidavit of support (I-864) in the place of the deceased petitioner. A law enacted in 2002 allowed the following relatives to become substitute sponsors of the beneficiary: spouse, parent, mother-in-law, father-in-law, sibling, child (if at least 18 years old), son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent or grandchild or legal guardian of the beneficiary.

The substitute sponsor must meet the minimum income requirements and be a U.S. citizen or legal permanent resident, at least 18 years old, and domiciled in the U.S.

In 2009, Congress passed a law that provides great relief to I-130 beneficiaries already present in the United States at the time of the petitioner’s death. These beneficiaries may have their pending visa petition and adjustment of status application approved if they are surviving relatives under the law and they meet the residence requirement. In these cases, the petition does not die with the petitioner, so to speak.

The deceased qualifying relative may be the petitioner or the principal beneficiary in a family-based immigrant visa petition, the principal beneficiary in an employment-based visa petition, the petitioner in a refugee/asylee relative petition, the principal alien admitted as a T or U nonimmigrant, or the principal asylee who was granted asylum.

Furthermore, the surviving relatives must have resided in the United States at the time of the petitioner’s death, and continue to reside in the United States. For purposes of this law, “residence” need not be lawful U.S. residence.

Beneficiaries who were outside the United States when the petitioner died have humanitarian reinstatement as their only recourse. A claim of humanitarian factors must be supported by documentary evidence in order to increase the chances of the petition’s reinstatement.

The laws on substitute sponsorship and surviving relatives were passed to ameliorate the harsh and unjust consequences to the beneficiary resulting from the petitioner’s death.

Entrepreneurs Now Have Faster Route to Green Card

The USCIS recently modified its policies to allow immigrant entrepreneurs to obtain a green card faster under the employment-based second preference (EB-2) category. This is one of several measures taken by the USCIS intended to help ensure that the United States “out-innovate and out-compete” the world in today’s global economy.

The USCIS clarified that an entrepreneur may qualify under EB-2 if he/she fulfills existing requirements as an advanced degree professional or individual of exceptional ability, and meets the requirements which include a job offer and a labor certification from the Department of Labor.

An entrepreneur may qualify for EB-2 classification if he/she is a member of a profession holding an advanced degree or its foreign equivalent, and the underlying position requires, at a minimum, a member of a profession holding an advanced degree or its equivalent

Another way that an entrepreneur may qualify is if he/she is an individual of exceptional ability in the sciences, arts or business. It must be demonstrated that the entrepreneur will substantially benefit the national economy, cultural or educational interests, or welfare of the United States. To establish exceptional ability, at least 3 of 6 criteria must be met, which include academic proof, employment letters showing at least 10 years of full-time experience in the occupation, a license or certification, and evidence of salary or remuneration that demonstrates exceptional ability.

In either case, there must be a U.S. employer filing the petition on the entrepreneur’s behalf and which has received a labor certification. The entrepreneur must also meet all the specific job requirements listed on the labor certification.

The job offer and labor certification requirements may be waived if it’s in the national interest to do so. Entrepreneurs may now obtain a National Interest Waiver (NIW) under EB-2 if they can demonstrate that their business endeavors will be in the interest of the United States. With a NIW, the entrepreneur may be able to file a petition for him/herself.

“National interest” for purposes of the waiver is not defined by statute or regulation. However, the threshold for eligibility for the waiver is determined by three criteria. First, the NIW applicant must seek employment in an area that has substantial intrinsic merit. The focus is on the area of activity and not the entrepreneur’s qualifications.

Second, the waiver applicant must demonstrate that the proposed benefit will be national in scope. For example, according to the USCIS, the entrepreneur can demonstrate that his/her enterprise will also create or spin off jobs in other parts of the country, or that the jobs created locally will have a positive national impact.

Third, the waiver applicant must demonstrate that the national interest would be adversely affected if the position sought by the applicant were made available to U.S. workers. In other words, the applicant must show a national benefit so great that it outweighs the national interest in protecting U.S. workers through the labor certification process. The entrepreneur may fulfill this by demonstrating that his/her business enterprise will create new jobs for U.S. workers.

Except for nationals of China and India, there is currently no visa backlog under the EB-2 preference category. With the substantial backlog in the EB-3 category, qualifying under the EB-2 category assures a considerably shorter waiting time for permanent resident status.

Effect of Travel on Pending Immigration Applications

The effect of international travel on a pending application or petition with the USCIS is a complicated matter that cannot be summed up in any single rule. Anyone with an immigration application should examine the possible effects of travel because it may have various consequences, such as being denied admission at the port of entry or being barred from reentering the U.S. for a number of years.

If the alien has a pending petition for extension of status, foreign travel is generally permitted. A Legacy INS rule stated that Service policy did not preclude an alien from traveling outside of the U.S. while a request for an extension of temporary stay is pending.

It is also important to note that USCIS follows an informal rule known as the “last action rule”. This means that the last action taken by the USCIS is the controlling action in determining a person’s status.

In instances where the extension of temporary stay is still pending but the foreign national has a currently valid petition and visa, such as in H-1B extensions, he/she may re-enter the U.S. but the I-94 to be issued upon reentry will list the expiration date of the initial petition.

If the extension of stay is approved while the foreign national is abroad, two things may happen. If the foreign national returns with the approval notice for the extension, he/she should receive an I-94 with the expiration date matching that of the extension approval.

If the extension is approved but the foreign national does not have the approval notice upon reentry, the last action rule tells us that the last action was the extension approval. However, since the alien only has the visa from the initial petition, the I-94 card will have an expiration that matches that visa. This scenario results in the foreign national having two I-94 cards, the one that comes with the approval notice and the one issued upon admission.

On the other hand, if one’s current petition and visa have expired and the petition for extension of stay is still pending, the foreign national may not return in the requested status until the extension is approved and the I-797 approval notice is issued. As a rule, a valid passport and visa are required before one may enter the U.S. The foreign national must wait for the approval and obtain a new visa from outside the United States.

If the pending application is for a change of status, such as from B1 to H-1B, the foreign national should refrain from traveling. The general rule is that travel during a change of status application constitutes abandonment of that application. If the USCIS learns that the applicant left the U.S. during the pendency of the application, it will be denied and the foreign national will be required to apply for a new visa abroad. It is not even advisable to travel even after the change of status application is approved but before the effective date.

Furthermore, in case of travel while a change of status is pending but after expiration of the I-94, the foreign national’s application will be abandoned but there are also other possible consequences to consider. For instance, a departure from the U.S. triggers the three-year or ten-year bar due to unlawful presence. If the change of status application filed before the alien left the U.S. was non-frivolous, timely, and the alien did not engage in unauthorized employment, it is possible that the bar may not be triggered.

If the foreign national remains in the U.S. after his/her I-94 has expired but has a pending change of status request, unlawful presence is “tolled” until the decision on the change of status application is issued. Although the alien is no longer in authorized or lawful status and is subject to removal, he/she is in a period of stay authorized by the Secretary of Homeland Security for purposes of counting the days of unlawful presence.

Finally if the pending application is for adjustment of status, foreign travel generally results in the abandonment of the application. That is why the foreign national must first obtain permission to travel in the form of advance parole. Some classes do not need advance parole to travel, however, such as H-1B, L-1, and K-3/K-4 visa holders.

Even when advance parole is obtained, there is no guarantee of readmission. If an adjustment application is denied and the foreign national does not have a valid nonimmigrant status, he/she may not only be denied entry but may also be placed in removal proceedings.

More importantly, if the foreign national incurred unlawful presence for more than 180 days, the 3 and 10 year unlawful presence bars would have been triggered already, making the alien inadmissible and ineligible for adjustment of status, except in cases where a waiver is available.

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