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Fight for DAPA/DACA To Continue Despite SC Ruling

Immigration was at the forefront of very significant events last week. On June 23, the United Kingdom voted to leave the European Union and immigration concern was a major factor. Meanwhile on the same day, here in the United States, the Supreme Court deadlocked on Pres. Barack Obama’s immigration initiatives.

The Supreme Court’s evenly-divided decision in the case of United States v. Texas means that the lower court decision against the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of the Deferred Action on Child Arrivals (DACA) stays.

Pres. Obama introduced DAPA and DACA expansion in November 2014 following the failure of Congress to pass a comprehensive immigration reform bill. DAPA and DACA were meant to ease the threat of deportation of more than 4 million undocumented immigrants.

After Obama announced these immigration initiatives, Texas and 25 other states filed a lawsuit in the district court claiming that the expanded DACA and DAPA violated the “take care clause” of the Constitution. They also argued that the initiatives were not in accordance with immigration laws and violated the Administrative Procedure Act (APA). The district court judge issued a preliminary injunction blocking the implementation of these policies.

On appeal by the government, the Fifth Circuit upheld the injunction. Thus, the case found its way to the Supreme Court.

DAPA would temporarily defer deportation for those who have a US citizen or LPR son or daughter as of November 20, 2014 and who have continuously resided in the US since January 1, 2010 but with no lawful immigration status. As long as they had no criminal convictions and have passed a background check, these undocumented immigrants could benefit from DAPA.

DACA, on the other hand, was first introduced by the Department of Homeland Security (DHS) back in 2012. Those under 31 years old on June 15, 2012, have arrived in the US before becoming 16, have continuously resided from June 15, 2007 to the present, are either in school, have graduated or completed high school or a general education development (GED) certificate, or are honorably discharged veterans of the US Coast Guard or US Armed Forces and have not been convicted of a felony can benefit from DACA. The expanded DACA eliminated the age requirement and pushed the arrival date to January 1, 2010.

Since its implementation in 2012, DACA has resulted in the improvement of the lives and economic conditions of over 700,000 young people who were granted work permits, obtained access to public universities and scholarships, and opened a bank account, among others.

The ruling of the Supreme Court is a setback for immigrants and their families but immigrant rights advocates are vowing to continue the fight. They are urging the Department of Justice to seek a rehearing. If this is not granted, then the case will go back to the district court for a decision on the merits. If the district court decides to strike down the initiatives, the government could appeal the case all the way to the Supreme Court again.

Immigrant advocates are also continuing to lobby the US Congress to pass immigration laws that would keep families united and benefit the economy.

Judo Athlete Qualified for EB-1 Extraordinary Ability

The employment-based first preference visa (EB-1) is granted to persons of extraordinary ability. They don’t need a job offer and they may self-petition. It is one of the fastest ways to get a green card.

It is usually reserved for outstanding scientists, artists and professors. But recently, a judo athlete was able to successfully qualify under the category. In a decision reached by the Administrative Appeals Office, the self-petitioner, a judo expert from Korea was granted EB-1 status so he can teach future judo athletes here in the US.

A foreign national applying for EB-1 visa must demonstrate sustained national or international acclaim and give extensive documentation of his achievements.  This claim is best evidenced through a one-time achievement of a major, internationally recognized award, such as the Nobel Prize, an Oscar Award or an Olympic medal. However, it can also be proven by submitting evidence falling under at least three out of the ten regulatory criteria.

These ten criteria are the following: (1) receipt of lesser nationally or internationally recognized prizes or awards for excellence; (2) membership in associations in the field that demand outstanding achievement of their members; (3) published material about the alien in profession or major trade publications or other media; (4) evidence that the alien has been asked to judge the work of others, either individually or in a panel; (5) evidence of original contributions of major significance to the field; (6) authorship of scholarly articles; (7) display of the alien’s work at artistic exhibitions or showcases; (8) evidence of performance in a leading or critical role for organizations that have a distinguished reputation; (9) evidence of high remuneration in relation to others in the field; and (10) evidence of commercial success in the performing arts.

He was able to demonstrate that he satisfied three of the ten regulatory criteria discussed above. He showed records that he won first place in national and international competitions. He also showed that his professional or athletic accomplishments were made the subject of an article published in Seoul Yonhap News, Korea’s largest news organization. The piece featured his performance in various rounds of tournaments. He also presented that he has a position in the national judo team which is effectively the most difficult association membership for a judo athlete to obtain, especially in Korea. Even his membership in the national team suffices to show one of the ten criteria because only those with the highest level of performance make the cut.

Because he was able to satisfy three of the ten criteria, the next is for the adjudicator to look at the evidence in totality and find out whether the foreign national meets the required level of expertise for the category. His level of expertise must be that of a small percentage of individuals who have risen to the very top of their field of endeavor, and that he has sustained national or international acclaim and his achievements have been recognized in his field of expertise.

Here, the petitioner was able to satisfy the board that he has a long, successful and recent career as a judo athlete. From 2000 to 2012, he was a member of the Korean national team that sweeps awards in the sport in the Olympics, World Championships, Masters, Grand Slam and other prestigious international competition.

According to the EB-1 visa program, the foreign national must seek to continue working in the same field of endeavor and that his entry will substantially benefit prospectively the U.S.

The petitioner seeks to establish a judo academy and train promising athletes and eventually coach the American judo team in the Olympics. Given all that he has demonstrated, the USCIS was convinced that petitioner may transition from athlete to coach and remain in his field of expertise.

Tips on How to Apply for War Veterans Parole

The US Citizenship and Immigration Services (USCIS) has started accepting applications under the Filipino World War II Veterans Parole Program (FWVP).

To further guide applicants about the whole process, USCIS recently released additional information on eligibility and filing requirements.

Under the said program, one may be eligible to request parole if (1) he is a US citizen or a lawful permanent resident (LPR) living in the United States; (2) he has established that he is either a Filipino WWII veteran or the surviving spouse of such individual; (3) he, the war veteran, or his surviving spouse, has filed a Form I-130, Petition for Alien Relative, for a family member and it was approved on or before a visa parole was requested; and (4) an immigrant visa is not yet readily available.

The beneficiary on the I-130 petition filed by the war veteran or his surviving spouse must have a qualifying legal relationship with the war veteran on or before May 9, 2016. The spouse and children under 21 years old of the principal beneficiary may also be eligible for the benefit but only if the principal beneficiary is approved for parole.

In cases where the WWII veteran and his spouse are both deceased, principal beneficiaries may request parole on their own behalf provided that USCIS approved the petition while the petitioner was alive, and then reinstated the approval after death. In cases where the petitioner died before the USCIS approved the petition, the beneficiaries can still seek to avail of the visa parole as long as they can prove that at least one beneficiary of the I-130 petition was living in the US at the time of the petitioner’s death and continues to live here in the US.

The self-petitioner must prove that he/she is the son, daughter, brother or sister of the deceased veteran and the veteran was living in the US at the time of death and that the veteran’s spouse is also deceased.

Principal beneficiaries who are already here in the US may benefit from the program but they need to appear before a USCIS office or consulate abroad to fully process their visa parole application. If found eligible to travel, the said relatives will be given travel documents to allow them to return to any port of entry in the US. This may not be as easy for those whose departure from the US may trigger certain bars. It is important to consult an immigration lawyer before pursuing any further steps.

For beneficiaries to be considered for the FWVP, Form I-131, Application for Travel Document must be submitted for each qualifying family member. A copy of the Notice of Action approving the I-130 petition or any evidence that USCIS has approved the petition in behalf of the relatives must be included along with the applicable fees or a fee waiver request, if eligible, and Form I-134, Affidavit of Support for each family member. Also needed are supporting documents that the petitioner is either a Filipino World War II veteran whose military service has been recognized by the US Department of Defense or the surviving spouse of said veteran. A self-petitioner, in addition to the ones earlier mentioned, should establish their relationship with the veteran and that the veteran’s spouse is deceased.

The parole is temporary and is good for three years. Work authorization may be obtained upon submitting a Form I-765 application. The parole in and of itself does not lead to an immigration status. The parolee is expected to apply for green card once his visa number becomes available. He should not remain in the US past the period of his parole without applying for adjustment of status or a parole extension.

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Filipino Loses US Citizenship Due to Prior Conspiracy to Commit Visa Fraud

It seldom happens but the citizenship of a naturalized person may be revoked. The process is known as denaturalization.

The grounds for revocation include concealment of material evidence or willful misrepresentation in the naturalization process, membership in subversive organization, and dishonorable military discharge.

Lack of good moral character in the five years prior to naturalization may also lead to denaturalization. This is what happened to a naturalized Filipino whose citizenship was revoked by a district court after he pled guilty to conspiracy to commit visa fraud in April 2009. The Court of Appeals upheld the revocation on April 18, 2016.

Ceferino Olivar was a native of the Philippines. He was naturalized back in 2002 and started working around the same year in a law firm as a paralegal. The visa fraud he committed did not pertain to him.

He, together with another person, was accused of filing fraudulent applications with the Department of labor and the USCIS. They helped immigrants submit false documents such as diplomas, transcript of records and experience letters to support their applications.

They would charge between $1,000 and $7,500 supposedly to find an employer who would sponsor foreign workers for an immigrant visa. The sponsoring employers never actually intended to hire the immigrant workers, according to the prosecutors.

Based on the facts of the case, the conspiracy began in July 2001 though according to Olivar, he did not commit any overt act to further the conspiracy until after he was naturalized.

Olivar contended that when he was sworn in as a US citizen, he was not a criminal and he had not done any criminal act. The “overt act”, which he argued was an important element of conspiracy, only happened after he was already naturalized. “When I agreed to commit the act, that did not mean that I committed it,” he insisted. “That is the very basic principle of conspiracy.”

The court disagreed with his contention. “So somebody could decide to engage in four or five illegal conspiracies to smuggle drugs, smuggle aliens, do a whole bunch of stuff, and say ‘but hold off, I’m going to become a citizen next week and then we’ll start buying the guns?’ Circuit Judge Susan P. Graber asked. “And that’s okay?”

Olivar clearly thought that as a US citizen, he was not at risk of being deported. Yes, you can be penalized and can be imprisoned, but you will not be susceptible to being deported for the commission of crimes. At least, that is what Olivar thought.

However, the court clarified that one of the requirements for naturalization is having good moral character in the five years prior to naturalization. The court held that even if no overt act was done until after he was naturalized, the conspiracy itself began at the time the defendant agreed to commit the crime. Thus, during the five year period prior to his naturalization or what is known as the ‘good moral character period’, he already failed to comply with that requirement.

Nurse Awarded Back Wages for Time He Didn’t Work

A Filipino nurse was recently awarded back wages for the period that he was not performing work due to lack of assigned work.

Vicente de Dios was petitioned by Medical Dynamic Systems, Inc., a health staffing company, to work as a fulltime nurse manager at a salary of $37.06 per hour. He contended that his H-1B status began on January 28, 2010 but he only worked for 24 hours in March 2010. On May 21, 2010, he was asked by the Marketing Director of Medical Dynamic to look for another sponsor since the company was unable to provide him a job placement. He was offered a plane ticket to go back home. However, after that, it kept communicating with him asking him to attend a few job interviews.

De Dios claimed that Medical Dynamic put him in a non-productive status and failed to perform its obligation under the H-1B petition. He was willing and able to perform his job as a nurse manager but Medical Dynamic attempted to employ him in positions other than what was in the petition. He also claimed that he paid the H-1B filing fees and attorney’s fees to process his application, in violation of H-1B regulations.

According to the decision of the Administrative Law Judge (ALJ), the employer must pay the required wage even if the H-1B worker was in non-productive status. If the non-immigrant worker was unable to perform work due to a decision by the employer like lack of assigned work, the worker was deemed to be “benched”. “Benching” is the nonproductive time that can occur when a company brings H-1B workers to the US and contract them out to other entities instead of use them in their own business. By law, the employer is still required to pay the said worker his required wage rate.

The only time that employers need not pay is if the nonproductive status happened because of circumstances that are attributed to the worker himself and unrelated to his employment like touring the US, caring for ill relative, maternity leave, among others.

The ALJ highlighted that an employer’s obligation to pay the H-1B worker’s back wages extends from the date the worker makes himself/herself available for work or comes under the control of the employer until the time that a bona fide termination of employment relationship was undertaken.

The ALJ ordered Medical Dynamic to pay De Dios for the period starting February 15, 2010, the date when De Dios made himself “available for work” or came “under the control of the employer” up through October 27, 2010, the date when the company made a bona fide termination of employment. It was liable to pay $55,587.20 in back wages for 37 weeks and two days at a rate of $37.06/hour, at 40 hours per week. It was also made liable to pay compound interest for the back wage assessment.

Furthermore, it was also held that the company violated the H-1B regulations when it made the worker pay for his H-1B filing fees and attorney’s fees, therefore reducing his pay. When a worker is asked to pay for the expenses in the filing of his H-1B petition, the ALJ said that it is in effect a wage deduction which would reduce his salary below that required in the petition. In the said case, De Dios paid $3,600 for his H-1B processing, which, according to the decision, was clearly in violation of the regulation. Medical Dynamic was then asked to remit the said amount to De Dios.

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