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Immigration Fraud and the U Visa

The U visa is a temporary visa granted to victims of certain criminal activities which occurred in the United States, US territory or US military installation. It is granted to victims who suffered substantial mental or physical abuse as a result of the criminal activity and who, as a result of being at the receiving end of such an unfortunate circumstance, possess credible and reliable information about the criminal activity.

It is important that the victim is helpful, is being helpful or is likely to be helpful in the course of the investigation and prosecution of the criminal activity. In recent years, USCIS has granted 10,000 U visas yearly, which is the cap provided by Congress. It has done a lot in the prosecution of offenses, especially those committed against vulnerable undocumented immigrants.

Before this visa, undocumented immigrants were largely placed in very disadvantageous positions because they could not report the crime for fear of being deported due to their immigration status or lack thereof and they could not seek assistance from the authority for fear of being harmed even more by the perpetrators or abusers.  Especially in domestic abuse or sexual abuse cases, the situation would persist because the perpetrator would use the lack of immigration status as a leverage to pin the victims down.

When this was created by Congress with the passage of the Victims of Trafficking and Violence Protection Act in October 2000, they listed the following qualifying crimes: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, female genital mutilation, felonious assault, fraud in foreign labor contracting, hostage, incest, involuntary servitude, kidnapping, manslaughter, murder, obstruction of justice, peonage, perjury, prostution, rape, sexual assault, sexual exploitation, slave trade, stalking, torture, trafficking, witness tampering, unlawful criminal restraint, and other related crimes which includes any similar activity where the elements of the crimes are substantially similar. It also includes the attempt, conspiracy or solicitation to commit any of the aforesaid crimes.

Immigration services fraud is not specifically included in the list of qualifying criminal activities but it could potentially fit in the categories of witness tampering, obstruction of justice or perjury.

Recently, lawyers and immigration advocates have lobbied for the inclusion of immigration services fraud in the list. Immigration services fraud is the crime of taking advantage of one’s lack of knowledge and understanding of the intricacies of the US immigration law and promising to render services which are fraudulent, unauthorized or rendering nothing at all.

Immigration services fraud come in different forms. The popular one is notario fraud, which is claiming to provide immigration services, without actually being qualified to offer such assistance.

Another form of immigration services fraud is the visa lottery scam, which is promising immigrants that they will have a better chance of winning the visa lottery, or offering to enter them in the lottery if they pay a fee which are oftentimes exorbitant when in actuality, USCIS does not collect any fees to be entered into said lottery.

Recently, a company with a Las Vegas address has victimized many Filipinos in the Metropolitan New York area promising them quick green card for a fee of $15,000 each.

Evidently, these practices prey upon the most vulnerable sector of immigrants. In the hopes of one day legalizing their status here in the US, undocumented immigrants rely upon the promises of these services not knowing that they are being taken advantage of.

Obtaining an Individual Tax Identification Number (ITIN)

Undocumented immigrants may need to prove, sometime in the future, how long they have been in the US and a good way to provide that proof is to obtain a Tax Identification Number (ITIN) and pay their taxes.

The first thing one should understand is that ITINs are numbers provided for tax purposes only. This is issued by the Internal Revenue Service (IRS) to people who are ineligible to get a Social Security Number (SSN) to ensure that they will still be able to pay their taxes. It does not confer an immigration status nor provide work authorization.

It cannot be used to track those who are unlawfully in the US or enforce immigration policies. In fact, because privacy is a very important tenet in taxation, the IRS is not allowed to share any taxpayer information to any other government agencies except to the Treasury Department in tax investigations or non-criminal tax investigations.

The issuance of ITINs has been criticized as allowing undocumented foreign nationals to blend in with the rest of the society without any regard to whether they are potential terrorists or whether they may endanger the safety and security of the community. They subvert immigration policies, the critics claim.

It cannot be denied, however, that through the issuance of the ITINs since 1996, the government was able to build a bigger tax base by including even undocumented immigrants and those who are here lawfully but are not able to get SSNs, in the collection of taxes. In 2010, more than 3 million people paid more than $870 million in income taxes using ITINs and in 2012, undocumented immigrants were able to contribute to the US’s coffers $11.8 billion in both state and local taxes.

Aside from undocumented immigrants, non-resident foreign nationals who have US-based businesses and who receive taxable income from such businesses are also able to pay their corresponding tax obligations through the ITINs. Foreign students who qualify as residents (based on days they are present in the US) as well as dependents or spouses of foreign nationals on temporary visas can also pay their taxes here through the ITINs since they cannot get a SSN.

As for undocumented immigrants, the ITINs have also been proven useful not only in establishing their length of stay here in the US but also their good moral character. Compliance with federal tax laws can help establish good moral character which is an important factor if one hopes to legalize his immigration status. Having tax returns with one’s ITIN on file with the IRS is an excellent form of documentation.

In addition to ITINs being useful for documentation purposes, it likewise confers added benefits especially those that can be accessed by taxpayers. For example, immigrant taxpayers can get Child Tax Credit worth as much as $1,000 per qualifying child. They can use the ITIN in opening bank accounts and in getting a driver’s license in some states, for example.

ITIN holders are not eligible for social security benefits or the Earned Income Tax credits. But the income reported with the ITIN may be credited to the benefits they will be eligible to receive once they become lawful permanent residents in the future.

In order to apply for an ITIN, one needs to submit a filled out W-7 form, along with a completed tax return to any IRS office. They need to include proof of identity and foreign status.

GOP Platform Has Bad News for Immigrants

The Republican Party’s platform which mirrors the vision that the party hopes to campaign on leading to the upcoming November 2016 elections has some bad news for immigrants.

Anchored on the pursuit of “Reforming the Government to Serve the People”, the GOP has sixteen major agenda that it hopes to push forward on matters of retirement security, economic growth, Medicaid and health, tax reforms and of course, immigration.

The party has acknowledged the huge contribution that immigrants have made for the American economy. “Just as immigrant labor helped build our country in the past, today’s legal immigrants are making vital contributions in every aspect of our national life. Their industry and commitment to American values strengthens our economy, enriches our culture, and enables us to better understand and more effectively compete with the rest of the world,” the platform states.

However, the platform likewise underscored that while they applaud those who go through the legal channels of immigration, they are saying that those who came here illegally undermine the benefits that legal immigrants have contributed to the country and at the same time, these undocumented immigrants threaten the safety of communities, remove jobs from US workers, and pose grave risks to the safety and the sovereignty of the United States.

Thus, their platform drumbeats the same hard line stance of Republican presidential nominee Donald Trump in saying that the highest priority should be in securing the rule of law  both at our borders and at ports of entry. Building the wall that they hope will counter illegal immigration is also a part of their agenda although this is nothing new since building a “wall’ was also in the Republican 2012 platform. “The double-layered fencing on the border that was enacted by Congress in 2006, but never completed, must finally be built.”

The platform promises that it will grant no amnesty to the undocumented immigrants because it rewards breaking the law and encourages more people to do the same. Instead, it promises to enforce alien e-verify programs before immigrants will be granted any kind of federal or State support or entitlements or work authorization.

Many frowns upon this platform and policy directions of the GOP saying that it has a very simplistic and black-and-white view of immigration and lacks a deep understanding of why there are illegal immigrants in the country. It has failed to recognize that for these millions of undocumented immigrants, they simply do not have a choice- they don’t have any choice but to run away from their home country either to escape persecution or gang violence, as in the cases of those trying to cross the borders from Central America or escape extreme poverty but lacks the required documented family members or skill set to be able to go through the rigorous process of legal migration.

While the document blames undocumented immigrants for taking jobs away from American workers, it has failed to provide any concrete solutions to actually provide jobs for these displaced workers.

Senators Urge Obama to Stop Deportations

As the November presidential election looms and as his term’s end draws closer, President Barack Obama faces a growing clamor to address immigration problems. The latest call for immigration reforms came from Senate Democrats that are pushing his administration to stop the deportations of asylum seekers.

Senators Edward J. Markey joined Senator Dick Durbin (D-IL) and Senator Patrick Leahy (D-VT) and 22 Senate Democrats in calling for an end to the deportation raids conducted since the start of the year targeting mothers, children and unaccompanied minors who have fled the violence in Central America.

The group of senators sent a letter to Pres. Obama urging his administration “not to focus its scarce resources on deporting vulnerable individuals who have no criminal record and were not represented by counsel during their removal proceedings.” Instead, they want the administration to start working on solutions to address the root causes of the problem.

Their letter states, “Deploying immigration raids upon this vulnerable population for the purpose of deterrence is an ineffective and unacceptable strategy. Immigration raids create fear and insecurity among immigrant communities in the United States. They will deter students from attending school and parents from seeking medical care, but they will not deter terrified mothers and children from fleeing life-threatening violence in their homelands.”

Data shows that although undocumented immigrants from Mexico account for the majority of undocumented immigrants in the country, immigrants from Guatemala, El Salvador and Honduras have surged and is touted to compare to what happened back in 2014. High murder rates and gang violence happening in these countries, called the Northern Triangle, have driven many families to flee.

Based on figures from the United Nations High Commissioner for Refugees (UNHCR), impunity and inadequate government capacity to address the violence have exacerbated in the region in recent years. Homicides in these countries remain unresolved. From 2010 to 2013, 95 percent of murders in the Northern Triangle were unsolved or unprosecuted.

This situation has prompted many families to flee in droves to seek refuge here in the United States. However, for the past two years, the Obama administration has sent them back. In January this year, the Obama administration conducted the first large-scale effort to deport Central American families and rounded up 121 individuals. ICE agents reportedly rounded them up at wee hours in the morning, only giving about five minutes for fathers, mothers and children to gather their belongings before they were made to board ICE vehicles.

Although it has received a lot of criticisms, ICE sources say the raids will continue and target illegal alien adults and minors whose asylum cases were denied and have been ordered removed from the country.

Apart from deportation, the government has also sent those families into detention centers while they plead their asylum cases. Even infants and small children are locked up in these detention facilities set up all over the country. Usually, it takes weeks before they are interviewed and they cannot leave the detention until they have passed their interviews.

Expanded Provisional Waiver to Benefit Thousands

The United States Citizenship and Immigration Services (USCIS) announced last July 29 the expansion of the existing provisional waiver program to include all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. The new rule, which will take effect on August 29 will benefit thousands who are not eligible to file for adjustment of status.

Before the first provisional waiver program took effect on March 4, 2013, applicants who had incurred unlawful presence in the US for more than 180 days, and were not eligible to adjust their status, had to go back to their home country to process their visa application there. They included fiances who entered on a K-1 visa but did not marry their petitioner and also crewmen and EWIs (those who entered without inspection) who were not grandfathered under Section 245(i).

Their departure from the US triggered the three or ten year bar. They were allowed to apply for a waiver of their unlawful presence but this took months, if not over a year. They had to appear first at the visa interview, wait for the denial of their visa application and then file for the unlawful presence waiver from outside the US and wait for its approval there. This discouraged many because of the risks, costs and hardship involved so instead of applying for a green card, they opted to remain undocumented.

To alleviate the hardship brought about by the lengthy family separation, the provisional waiver was introduced. It allowed them to apply for the waiver before their departure to process their immigrant visa application abroad.  However, the 2013 rules only applied to immediate relatives (spouses and children of US citizens and parents of adult US citizens) who can show that their separation would cause “extreme hardship” to their US citizen spouse or parent.

The new rule would cover visa applicants who can show extreme hardship to a US citizen or lawful permanent resident spouse or parent whether their visa petition is family-based or employment-based.

The provisional waiver covers unlawful presence and no other ground of inadmissibility. The application would be made on a new form, Form I-601A Application for Provisional Unlawful Presence Waiver.

Individuals who are not eligible for the provisional waiver would still be able to apply under the old waiver procedure, i.e. depart from the US and apply for the I-601 waiver abroad.

Note that the waiver is provisional in that it would not take effect until after the applicant departs the US, appears at his visa interview and is found by the consular officer as otherwise admissible to the US. But the time that the individual would have to spend abroad would be significantly less compared to that under the old procedure.

We have recently represented a fiancée and also a crewmember and we successfully obtained their provisional waiver in only a few months. They went to Manila for their visa interview and came back with their green card after only a few weeks of stay there.

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