Since 1975, the Law Offices of Reuben S. Seguritan has served the immigrant community’s legal needs. A full service law firm, it has provided legal services relating to immigration, real estate, family and a Filipino immigration lawyer
One of the ways of immigrating to the United States is through a family petition. This is done by a US citizen or lawful permanent resident (LPR) by filing a Form I-130 Petition for Alien Relative for his spouse or child with the United States Citizenship and Immigration Services (USCIS).
In order to petition a child, the petitioner US citizen or lawful permanent resident must show that the person petitioned or beneficiary is a “child” as defined by law. The term “child” under the Immigration and Nationality Act (INA) generally refers to an unmarried person who is under 21 years of age who is a: a) legitimate or born in-wedlock child; b) legitimate or illegitimate step-child who was under 18 when the step-relationship created; c) a child legitimated before 18, if under the father’s custody at the time of legitimation; d) illegitimate or out-of-wedlock child where relationship is with either parent; e) child adopted before 16 with at least 2 years of legal custody and resident with the parent; and f) certain orphans.
The situation of illegitimate children is often a source of confusion as to whether the US citizen or LPR biological parent can petition them. The illegitimate child could be petitioned by his biological mother as long as she can present a copy of the registered birth certificate of the child indicating that the mother-petitioner is listed as the mother therein. If it is not possible to present the birth certificate, then other evidence may be presented. This could be an official letter (often referred to as a “certificate of nonavailability”) explaining why an acceptable birth certificate cannot be issued. Alternative documents may also include two or more affidavits of birth (sworn letters written by relatives or other persons with personal knowledge of the facts of a child’s birth), as well as medical records, school records, and religious records (such as certificate of baptism issued by a church) showing the names of the mother and the child.
However, if the father would be the one to petition the illegitimate child, he must establish that there is a “bona fide” parent-child relationship with the child and he must petition the child while the child was under 21 years and unmarried. This “bona fide” parent-child relationship means there must be an “emotional and/or financial ties” between the father and illegitimate child. This can be shown by attempts to provide child support or communication with or about the child. The evidence submitted can include money order receipts, checks showing child support, insurance documents, school records, private letters between the child and father. Notarized statements from family friends, neighbors, school officials and other persons having personal knowledge of the parent-child relationship may also be submitted.
On the other hand, legitimated children are those who were born out-of-wedlock but subsequently placed in the same position as a legitimate child or a child in-wedlock. Legitimation can be acquired by: 1. the application of the laws of the country or state where the child was born or the laws of the father’s domicile or residence provide for legitimation of children; or 2. Subsequent marriage of the biological parents of the child; or 3. Court decree of legitimation; or 4. Formal recognition of paternity; or 5. Through open acknowledgement of paternity.
In order for the father to bring his legitimated child to the US, the following requirements must be met: 1. Legitimation in accordance with one of the mentioned methods above; 2. The child is under 18 years of age at the time of legitimation; 3. Paternal custody at the time of legitimation and 4. The child is the natural or biological child of the father.
If the legitimation is through marriage of the parents, then the registered marriage certificate must be submitted. If the marriage certificate can not be submitted, submit a certificate of nonavailability in addition to alternative documents. Alternative documents include affidavits of marriage and religious records stating the date when the marriage was celebrated and witnesses to the marriage.
There are different kinds of visas to bring a foreign national to the United States for a definite period of time. One of those visas is the O-1 nonimmigrant work visa for foreign nationals with extraordinary abilities. The foreign national must be sponsored by a US employer or agent. Foreign nationals cannot sponsor themselves for the O-1 visa. The advantage of the O-1 visa over other work visas such as the H-1B visa is there is no cap or yearly limit.
The O-1 nonimmigrant visa is for a foreign national who possess extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
“Extraordinary” ability or achievement is a high standard that must be met in order to be approved for the O-1 visa. Evidence must be presented to support at least 3 of the 8 categories enumerated by the United States Citizenship and Immigration Services (USCIS). These are: 1. Receipt of nationally or internationally recognized prizes or awards for excellence in the field of endeavor; 2. Membership in associations in the field for which classification is sought which require outstanding achievements, as judged by recognized national or international experts in the field; 3. Published material in professional or major trade publications, newspapers or other major media about the beneficiary and the beneficiary’s work in the field for which classification is sought; 4. Original scientific, scholarly, or business-related contributions of major significance in the field; 5. Authorship of scholarly articles in professional journals or other major media in the field for which classification is sought; 6. A high salary or other remuneration for services as evidenced by contracts or other reliable evidence; 7. Participation on a panel, or individually, as a judge of the work of others in the same or in a field of specialization allied to that field for which classification is sought; and 8. Employment in a critical or essential capacity for organizations and establishments that have a distinguished reputation.
The 8 categories stated by the USCIS is not exclusive. Other comparable evidence may be presented to meet the “extraordinary” ability or achievement requirement.
There are different visas in the O-1 visa classification. The O-1A visas are for foreign nationals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry). The O-1B visas are for foreign nationals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry. The O-2 visas are for foreign nationals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 foreign national has critical skills and experience with the O-1 that cannot be readily performed by a US worker and which are essential to the successful performance of the O-1 foreign national. The O-3 visas are for foreign nationals who are the spouse or children of O-1’s and O-2’s.
O-1 visas are considered as “dual intent visas.” The O-1 foreign national is not required to show foreign residence to prove that he has an intent to return to that country. This means that the granting or extension of the O-1 visa cannot be denied even though a labor certification or a petition leading to permanent residence in the US is filed on behalf of the O-1 foreign national. However, the O-2 visa accompanying foreign national must be going to the US temporarily and must show that he has residence abroad. Hence, the O-2 visa foreign national must show that he will only be temporarily in the US to assist the O-1 visa foreign national.
F-1 (academic student) or M-1 (vocational student) visas are available for foreigners who want to study in the United States. It is important to acquire the F-1 or M-1 visa first, before enrolling and studying in the US. If a foreigner enrolls in a class without first acquiring the F-1 or M-1 visa, then he has committed a violation of his status.
If a foreigner is in the US with a valid nonimmigrant visa and he would like to enroll in a class, he does not need to leave the US in order to change his status to F-1 or M-1. However, he must meet the following requirements: 1. He was lawfully admitted to the US with a nonimmigrant status; 2. His nonimmigrant status remains valid; 3. He has not violated the conditions of his nonimmigrant status; and 4. He has not committed any crimes or engaged in any other actions that would make him ineligible to change his status. Once the foreigner applies with the USCIS to change his status to F-1 or M-1, he must wait for the approval notice from the USCIS. Hence, the foreigner should not enroll in classes or begin his studies until the USCIS has approved the change of status. Also, if the foreigner is in the US on a M-1 visa, he may not change to F status while he is in the US.
Before the USCIS may approve the application, the following steps must be taken: 1. Apply to and receive acceptance from a US Student and Exchange Visitor Program (SEVP)- certified school; 2. Obtain an initial Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, from the SEVP-certified school. The Designated School Official (DSO) should give change of status in the Issue Reason section of the Form I-20; 3. Pay the I-901 SEVIS Fee and 4. File a Form I-539, Application to extend/Change Nonimmigrant Status with the USCIS.
If the USCIS has not made a decision on the application at least 15 days before the program start date as indicated on the Form I-20, the foreigner should contact the DSO at the school. If the USCIS does not grant the application prior to the start of classes, the foreigner must defer attendance and wait until the next school term to begin his studies with the valid F-1 or M-1 visa. Furthermore, all applicants must maintain a valid nonimmigrant status in the US while their applications are pending.
If there is a gap of time between the date the current nonimmigrant status will expire and the date when the F-1 or M-1 program will start, and the foreigner would like to remain the US, he must find a way to the obtain valid status for these days up to the date that is 30 days before the school program begins. This is known as “bridge the gap.” This “bridge the gap” can be obtained by filing a new Form I-539 application to request to extend the current status or change to another nonimmigrant status. If the foreigner fails to file this new Form I-539, the USCIS will deny the first Form I-539 filed to change to F-1 or M-1 student status. Hence, the foreigner may need to file multiple Form I-539 applications in order to ensure that there is no gap time wherein he did not have a valid status in the US. If it would be burdensome to remain in the US while the F-1 or M-1 visa applications are pending, it would be better for the foreigner to return to his home country and apply through consular processing.
Applying for the F-1 or M-1 visa while in the home country of the foreigner, requires the following: 1. Apply to and receive acceptance from a SEVP-certified school; 2. Receive a new initial Form I-20 from the DSO; 3. Pay the I-901 SEVIS fess; and 4. Apply at a US Consulate or Embassy for an F-1 or M-1 visa to travel to the US to study and be admitted as a student. If a visa is not required for the foreigner to enter the US, he may proceed directly to a US port of entry or a US pre-clearance/ pre-flight inspection station and apply for admission to the US as an F-1 or M-1 student. Once admitted by an immigration officer as an F-1 or M-1 status, he may begin his studies.
President Trump has ordered the Secretaries of State and Homeland Security to submit plans to deter overstays. The President suggested punishing countries whose citizens have high rates of overstays and/ or to require all foreign travelers to the US to post admission bonds that would be repaid to them once they leave the US. Possible punishments could be limiting the number of visas granted to these countries, limiting the time their citizens are allowed in the US, and requiring its citizens to submit more documents when applying for visas and to enter the US.
He justified this directive by stating that overstays are as problematic as undocumented immigrants (people who cross the border illegally) because they undermine the integrity of the US immigration system and harm the national interest. He added that visa overstays are unacceptably high and are a widespread problem. Furthermore the US Immigration Customs and Enforcement (ICE) states that overstays pose a potential nationals security threat to the US and should be prioritized for further investigation or removal operations.
The Department of Homeland Security (DHS) defines an overstay as “a non-immigrant who was lawfully admitted to the United States for an authorized period but stayed in the United States beyond his or her lawful admission period.” The DHS describes two types of visa overstay: 1. People for whom no departure has been recorded and 2. People who departed the US but after their lawful period of admission expired.
Some of the overstays are from countries included in the Visa Waiver Program (VWP). The nationals of the countries in the VWP may travel to the US for tourism or business for a period of up to 90 days without obtaining a visa.
For countries that are required to obtain a visa before entering the US, there are overstays in all categories. However, the category with the most number of overstays were for the student and exchange visitors visa. About 40% of the total student/exchange visa overstays in 2017 were from China, Saudi Arabia, India and South Korea.
For tourism and business visitor (B) visa, the overstay rate is currently higher than 10%. There were about 301,000 overstays in 2017. For 2018 there were 305,000 overstays. Brazil had the most number of overstays in 2017 with 33,759 for B visas. Venezuela was a close second at 30,424 of its nationals as overstays in the same period.
For travelers from the Philippines, it was estimated that more than 12,000 overstayed their visas in 2016. Out of this number of overstays, 5,000 entered the US on business or tourist visas. Then about 934 were students and exchanged visitors who overstayed. But the largest category of Filipinos who overstayed in the US were temporary workers and trainees, traders, investors, fiancées of US citizens and their children, and spouses and children of US citizens and US lawful permanent residents (LPR) who totaled 6,523 in 2016.
In 2017, the Philippines was the second country after India with the most number of overstays in the nonimmigrant worker visas category with 7,075 Filipinos overstaying. The Philippines also had 5,276 overstays in the business or tourism visa category and 967 in the students and exchange visitor visa category.
From 2016 to 2017, about 62% of the newly undocumented immigrants were the overstays and 38% were those who crossed the border illegally. It is estimated that in 2017 there were more than 700,000 overstays. In 2018, almost 667,000 people overstayed their visas.
Immigration law advocates have pointed out that the DHS’s method of finding out which country has the most number of overstays is flawed. This is because the rate is computed by looking at how many visitors went to the US from a certain country and how many left within their authorized stay. Hence, Djibouti had the highest overstay rate even if the overstays were just 180 people. Chad’s 30.8% of overstays amounted to 165 people and Yemen in third place had 518 overstays. Other countries such as Mexico had an overstay rate of 1.5% but that was equivalent to 43,000 people. Canada had an overstay rate of less than 1% but that represented 88,000 people. Furthermore, the arrivals from Mexico and Canada only took into account those who arrived by sea and air. The Mexicans and Canadians who arrived in the US by land were not included in the computation. If the number of people who overstayed would be the basis for the ranking of the countries, then the top countries would be Mexico, India, China and Venezuela.
WASHINGTON — President Trump on Monday ordered new restrictions on asylum seekers at the Mexican border — including application fees and work permit restraints — and directed that cases in the already clogged immigration courts be settled within 180 days.
In a memo sent to Kevin McAleenan, the acting secretary of homeland security, and Attorney General William P. Barr, the president took another step to reshape asylum law, which is determined by Congress, from the White House.
The restrictions do not take effect immediately. Mr. Trump gave administration officials 90 days to draw up regulations that would carry out his orders. They would be among the first significant changes to asylum policy since Mr. McAleenan replaced Kirstjen Nielsen as head of homeland security and the president signaled he would take a tougher stance on the asylum seekers swamping the border.
The administration has already tried to restrict the number of migrants who can apply for asylum per day, who qualifies for asylum and where they must wait for a resolution — immigration policies that have been the subject of multiple federal court cases.
Carrying out the president’s orders will be an early test for Mr. McAleenan, who was named acting secretary this month.
“The purpose of this memorandum is to strengthen asylum procedures to safeguard our system against rampant abuse of our asylum process,” Mr. Trump said in the memo.
The memo did not make clear how the plans would be carried out in immigration courts. More than 800,000 cases are pending, with an average wait time of almost two years. The Trump administration added to that backlog when it directed immigration authorities to reopen thousands of nonviolent removal cases.
The memo specifically called for the authorities to set a fee for asylum seekers filing their claims and for their work permit applications.
Migrants who have entered or tried to enter the United States illegally would also be barred from receiving a work permit until their claims are adjudicated.
“There’s a reason that we give people work permits while they are waiting for asylum, so that they can support themselves and don’t have to be depending on government assistance during that time,” said Michelle Brané, the director of migrant rights and justice at the Women’s Refugee Commission.
Fewer migrants try to cross the border now than in the early 2000s. But the demographics have shifted: Most are now families from Central America rather than single Mexicans who could be quickly deported. The sheer number of families has overwhelmed the system, and because of rules that prohibit holding children in detention for more than 20 days, some families are released into communities along the border.
More than 103,000 migrants crossed the southwestern border in March without authorization, an increase from the more than 76,000 who crossed in February. Immigration and Customs Enforcement, also known as ICE, is currently housing more than 50,000 migrants, one of the highest numbers on record, and about 5,000 more than the congressionally mandated limit of 45,274.
In 2016, the average daily population of immigrants in detention dipped to 34,376.
After the memo’s release on Monday night, Julián Castro, a 2020 Democratic presidential candidate and former Obama administration housing secretary, called the orders “truly sickening.”
“Families are fleeing violence and turmoil to seek refuge at our borders and Donald Trump wants to charge them a fee to gain asylum,” he said on Twitter.
This month, the White House took action over the rising number of border crossings when Mr. Trump forced out Ms. Nielsen, who oversaw attempts to tighten the asylum process and the administration’s family separations practice. The next day, the White House pushed out multiple other homeland security officials.
Stephen Miller, the president’s top immigration adviser, has assumed more power over shaping policies and decisions. He was behind the purge of homeland security officials and has advocated aggressive, legally dubious policies, including busing migrants to so-called sanctuary cities to retaliate against Democrats.
At the current pace of about 100,000 migrants each month, officials estimate more than a million people will have tried to cross the border within a year.
“The Coyotes and Drug Cartels are in total control of the Mexico side of the Southern Border,” Mr. Trump tweeted Monday night. “They have labs nearby where they make drugs to sell into the U.S. Mexico, one of the most dangerous country’s in the world, must eradicate this problem now. Also, stop the MARCH to U.S.”
Ms. Brané said the new restrictions would turn “asylum on its head.”
“The entire idea of asylum is that it’s something that you need because you are fleeing some sort of violence or persecution,” she said, “and to then say that it’s only accessible to people who can pay a fee doesn’t make sense.”
Speaking of the Trump administration’s broader approach to asylum, Ms. Brané said, “All of it has been aimed at reducing the number of people who can access the system as opposed to reducing the need for asylum by addressing root causes.”
While most asylum seekers pass their initial interview with an asylum officer, only about 20 percent ultimately win the right to live and work in the United States. Applicants must show evidence of past persecution and establish a “well founded” fear that they would face danger if they returned home.
As former commissioner for Customs and Border Protection, Mr. McAleenan helped carry out the Trump administration’s “zero tolerance” policy to prosecute parents caught crossing the border illegally, which led to the family separations. But he has also emphasized the importance of aid to Central American countries — even though Mr. Trump cut State Department funding to Honduras, El Salvador and Guatemala this year.
Mr. McAleenan, who is seen by many as someone who can appeal to both Democrats and Republicans in Congress, will have an opportunity to do so on Tuesday morning, when he is expected to testify in front of the House Appropriations Committee.