ABS-CBN International/The Filipino Channel’s (TFC) weekly program, Citizen Pinoy, hosted by leading U.S. Immigration Attorney Michael J. Gurfinkel, won for Best Regular TV Show on Migration at the 2017 Migration Advocacy and Media Awards. (Photo courtesy of Sam Simbulan)

TFC’s weekly program, Citizen Pinoy, won the Television Journalism Award – Best Regular TV Program Category in the 2017 Migration Advocacy and Media (MAM) Awards.

Citizen Pinoy is a public service program hosted by leading U.S. Immigration Attorney Michael J. Gurfinkel, that specializes in helping the Filipino community deal with immigration issues and legal problems in North America. It focuses on immigration laws, issues and procedures, and presents complex immigration topics in plain terms, enabling viewers to better understand their rights, options, and possible solutions to their immigration problems.

Each episode of Citizen Pinoy is filled with heart-wrenching and heart-warming stories of separation, sacrifice and salvation. The program continues to be the Filipino’s passport to immigration information.

Citizen Pinoy airs nationwide in the U.S. and Canada on TFC on Sundays at 6:15 P.M. (PST) with replays the following Sundays at 2:00 A.M. (PST). The program also airs in Asia, Australia, Europe, and the Middle East.

Additionally, TFC’s myREMIT® campaign entitled “Papa’s Boy” won for Best Advertisement. The commercial is about a father who left his wife and son at a very young age to pursue a better opportunity abroad and provide for his family’s needs. When the father returns home, he sees his son all grown-up. myREMIT® is a service offered by TFC that allows the convenience and security of sending money to the Philippines 24/7 online or by phone.

TFC myRemit’s campaign “Papa’s Boy” shows the story of a father who leaves his family behind to seek greener pastures abroad to support them. This story resonates with so many overseas Filipinos who have made so many sacrifices for their loved ones. (Image screenshot from “Papa’s Boy” TVC)

The MAM Awards was conceived in 2011 by the Commission on Filipinos Overseas (CFO) to honor December as the Month of Overseas Filipinos, and to celebrate International Migrants Day in the Philippines every December 18.

The Migration Advocacy and Media (MAM) Awards was conceived to recognize those who advocate the cause of Filipinos overseas. (Image courtesy of the MAM Awards Facebook page)

The CFO selected 10 winners from among entries submitted from around the world, each telling stories that advocate for the rights of the overseas Filipino, across various media platforms.

This year’s awardees were chosen for having raised public awareness on issues on Filipino migration, advocated the cause of Filipinos overseas, promoted a positive image of Filipinos overseas, and espoused the concepts of migration and development.

The panel of judges for the MAM Awards is headed by CFO Interim OIC Maria Regina Angela Galias, with members from the different migration and media institutions, which include Philippine Migrants Rights Watch, National Commission for Culture and the Arts, Presidential Communications Operations Office, Philippine Information Agency, Film Development Council of the Philippines, and National Press Club of the Philippines.

The Commission on Filipinos Overseas will confer the 2017 Migration Advocacy and Media (MAM) Awards to 10 best media entries from the Philippines and abroad, at the PICC, Pasay City on December 18, 2017, which is also International Migrants Day

Click here for the full list of winners of the 2017 Migration Advocacy and Media (MAM) Awards.

###

Media Contact:

Pia Lopezbanos-Carrion
ABS-CBN International – TFC
2001 Juniperro Serra Blvd, Ste. 200
Daly City, CA 94014
pia_lopezbanos@abs-cbn.com
1-650-241-5607

By Michael J. Gurfinkel, ESQ.

In a long – awaited decision, the US Supreme Court ruled that the only aged-out children who can retain their original priority date under the Child Status Protection Act (CSPA) are those who were originally petitioned by a lawful permanent resident (LPR) parent in the F-2A category (minor child of LPR), either:

1. As a direct beneficiary, (where the LPR parent directly petitioned that minor child); or 2. As a derivative beneficiary, where a green-card holder petitioned a spouse, and their minor child was included under that same F – 2A petition, and later aged –out.

All other derivative beneficiary children who aged out are NOT able to retain/convert/transfer the original priority date on their parent’s petition. This means that aged out derivative children in the following categories will not be able to retain/convert the original priority date of their parent’s petition, which was filed either by the child’s grandparent or uncle or aunt:
1. F – 1 (adult child of US citizen)
2. F-2B (single adult child of LPR)
3. F-3 (married child of US citizen)
4. F-4 (brother or sister of US citizen)
Instead, the parent will have to come forward and file a brand – new petition in the F-2B category (once the parent gets a green card), and the child will get a brand – new priority date based on when the parent files the new petition.

By way of background, the CSPA provided protection for certain children who aged out while waiting for the priority date on their (or their parent’s) petition to become current. Basically, you take the child’s age on the date when the priority date becomes current (or visa becomes available) and subtract from the child’s age the length of time it took the USCIS to process and approve the underlying petition. If the child’s age is calculated to be under 21 (and the child sought to acquire a visa within one year), then the child is included under the original petition as a minor, even though he or she is now over 21.

Another provision of the CSPA, which was the one at issue with the Supreme Court, states that if, after performing the mathematical computation, the child’s age is considered to be over 21, then “the alien’s petition shall automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.” It was argued that children who were petitioned in the F-2A category, as well as all other derivative beneficiaries of the other preference categories, should automatically retain their parent’s original priority date on a newly filed F-2B petition.

Unfortunately, the Supreme Court accepted the BIA’s interpretation of this statute, which limited its application to only unmarried children who had a “qualifying relationship” with an LPR parent both before and after the child aged out. The BIA (and the Supreme Court) focused on the language in the statute concerning “automatic conversion”, which they interpreted to mean “when a petition could move seamlessly from one family preference category to another.” The conversion is merely moving the same petition from one category to another, where the petitioner/sponsor, and the petition itself, remain the same throughout.

In the other family categories, there is no direct relationship between the original petitioner (grandparent, aunt\uncle) and the aged out child. Instead, the parent would have to come forward and file a new petition. Therefore, the other family categories require a new petitioner and new petition, which is not an “automatic” conversion of the same petition by the same petitioner.

The US Supreme Court also believed it would be unfair to other aged-out beneficiaries already in line in the F-2B category, because if automatic conversion were allowed (and the aged out child of the other preference categories could retain their parent’s original priority date) they could “cut in front of the line”. Right now they are processing F-2B petitions filed in 2003. However, petitions by brothers and sisters of US citizens are being processed with priority dates in 1990. If an aged-out derivative child of an F-4 petition can retain the 1990 priority date, that child will be able to go in front of the F – 2B beneficiary who is already in line (with the 2003 priority date).

I know this was not the decision or outcome we had all been hoping for. Aged – out children in the other family categories will now need their parents to file new F –2B petitions, and the child will receive a brand-new priority date. However, make sure your math was correct, as perhaps the child’s age was could have been calculated to be under 21, in which case they would not need to rely on that automatic conversion provision of the CSPA.

Also, if you were originally an F-2A beneficiary and aged out, at least you could retain that same priority date in the F-2B category.

WEBSITE: www.gurfinkel.com

Follow us on Facebook.com/GurfinkelLaw and Twitter @GurfinkelLaw

Four offices to serve you:

PHILIPPINES:
894-0258 or 894-0239;

LOS ANGELES; SAN FRANCISCO; NEW YORK:
TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)

by michael j. gurfinkel, esq

            On November 15, 2013, the US Citizenship and Immigration Services issued a Policy Memorandum (“PM”) concerning “parole in place” for people who entered the US without inspection and are the spouse, child, and/or parent of those who are on active duty, reservists, or veterans (Armed Forces personnel).

In other words, certain relatives  of Armed Forces personnel may be able to adjust status in the US, even if they entered the US without inspection (EWI) and do not have the benefit of section 245(i).

In the past, these family members were unable to adjust status in the US, and instead had to go back to their home country for immigrant visa processing, where they could face a 10 year bar from returning to the US, or possibly apply for a “provisional waiver.” This PM may allow them to adjust status in the US.

By way of background, a person may be “paroled” into the US for “urgent humanitarian reasons or significant public benefit. ” It is typically utilized for people who are outside the US to enable them to come into the US. However, parole may also be granted to aliens who are already  inside the US “without inspection or admission,” in which case  it is called “parole in place”.

In the PM, the USCIS recognizes that active duty Armed Forces personnel “face stress and anxiety because of the immigration status of their family members in the United States.” Further, their military preparedness could be affected if they have to “worry about the immigration status of their spouses, parents and children.” Similarly, “our veterans, who have served and sacrificed for our nation, can face stress and anxiety because of the immigration status of their family members in the US”. Accordingly, this stress and anxiety by Armed Forces personnel could constitute an “urgent humanitarian reason or significant public benefit” for granting parole in place.

The basic requirements for eligibility are:

1. You entered the US without inspection, and do not have the benefit of section 245(i)- i.e., you were not petitioned before April 30, 2001.
2. You have been petitioned, and have a spouse, parent, or child who is on active duty, or is a veteran. (Note: LPRs can only petition for spouses or unmarried children; not parents)
3. You do not have a criminal conviction or “other serious adverse factors”.
4. Unfortunately, unless you are an immediate relative (spouse, parent, or child of a US citizen), you would have to be “in status,” which may affect the ability of family members of LPRs to adjust status, if they are already “out of status.”

If parole in place applies to you, you may be able to file for adjustment of status (be interviewed for a green card in America) even though you are EWI, or have no proof of inspection.

While the PM primarily deals with family members of Armed Forces personnel, I believe that parole in place may also be applied in other situations as well. For example, the PM itself clearly notes that it “applies to any paroled alien, not only to family members of Armed Forces personnel.” Thus, even if you are not being petitioned by an Armed Forces personnel, but your case involves “urgent humanitarian reasons or significant public benefit,” then maybe you also could be eligible for parole in place. (For example, what about an EWI spouse of a paraplegic American who was not in the military? Or they have a special needs child. Ordinarily, they could not adjust status in the US, but it would seem to be an urgent humanitarian reason for allowing parole in place.

Similarly, based on the justification used in this policy memo,  the Department of Homeland Security should be readily extending other immigration benefits to the family members of Armed Forces personnel in addition to this parole in place or adjustment of status. For example, if an Armed Forces personnel on active duty has a family member in removal\deportation, he or she is also going through a lot of stress and anxiety, such that DHS should consider other benefits, such as prosecutorial discretion, termination of proceedings, or other favorable discretionary consideration in connection with hardship or fraud waivers.

If you believe that you qualify for parole in place, or other forms of discretionary benefits, either because you have a family member who is an Armed Forces personnel, or your situation involves urgent humanitarian reasons or significant public benefit, I would definitely suggest that you seek the advice of a reputable attorney, who can evaluate your eligibility and help you apply for this benefit.

by Michael J Gurfinkel, ESQ

Typhoon Yolanda has dominated the world’s news, with shocking images of the devastation and destruction of this horrible typhoon. Even now, people are still homeless, without adequate food, water, shelter, medical supplies or care. Some are forced to sleep next to the bloated bodies of those killed during the typhoon. Newscasters and world leaders have praised the courage, strength, and resilience of Filipinos during this time of crisis and need.

My heart goes out to the victims and their families, whether they are in the Philippines, US, or around the world. They are all worried and praying.  While I was in San Francisco, I participated in a telethon by TFC and ABS – CBN Foundation International, to raise funds for the typhoon victims. I was honored and deeply touched to participate in that telethon, answering the phones, hearing so many Filipinos calling in their contributions, pledges, and heartwarming messages for their Kababayans back home.

For its part, the USCIS announced that Filipinos affected by Typhoon Yolanda “may be eligible for certain immigration relief measures if requested.” These “relief measures” deal with a Filipino’s ability to establish or maintain lawful immigration status in the US.

Among the relief measures listed by the USCIS are for Filipinos who are IN THE US, but who were truly affected by the Typhoon:

• “Change or extension of nonimmigrant status for an individual who is currently in the US, even when the request is filed after the authorized period of admission has expired.” In other words, if you missed the deadline for filing a change or extension of status because of Typhoon Yolanda, USCIS may accept the late filing. But I would not wait too long to apply!
• “Extension of certain grants of parole,” such as humanitarian parole or “parole in place.” “Extension of certain grants of advance parole,” (meaning the ability to travel outside the US while your adjustment of status application is pending), and the “expedited processing of advance parole requests.” In other words, if you have an adjustment of status application pending, and urgently want to go back to the Philippines to see family members affected by Typhoon Yolanda, USCIS may expedite your request for advance parole. (However, before applying for advance parole, make sure you are eligible and it is otherwise “safe” for you to travel outside the US.)
• Expedited processing of work authorization for off-campus work for students “experiencing severe economic hardship.”
• Expedited processing of immigrant petitions for immediate relatives of US citizens and lawful permanent residents (LPRs). In other words, if you are being petitioned by an American spouse, and desperately want to go home to visit your family, USCIS may expedite the processing of your petition and possibly adjustment of status, enabling you to get your green card quickly and travel back home as quickly as possible
• Expedited processing of work authorizations, where appropriate.
• Assistance to green card holders stranded in the Philippines, without immigration or travel documents, such as a green card. In other words, a green card holder may have been caught in Typhoon Yolanda, and his or her green card was washed away.

If you truly were affected by Typhoon Yolanda, and are in need of the available immigration relief measures, you should seek the advice of an attorney, who can determine your eligibility (and determine if it is “safe” for you to apply) and assist in the possible expedited processing of those relief measures. Please note that this does
NOT mean that the Embassy will issue visas to your family in the Philippines who were affected by the Typhoon, so they can come to visit or live in the US.  These measures are primarily designed to help you maintain your lawful immigration status in the US.

by Michael J Gurfinkel

There is a lot of news and excitement about “Comprehensive Immigration Reform,” which could benefit the approximate 11 million illegal aliens in the US. Democrats and Republicans, as well as labor and business, are all coming together, acknowledging that something needs to be done to enable these people to achieve their “American Dream” and pursue a pathway to legalization and citizenship.

There have been several proposals, such as a “W” visa, for people working in lesser- skilled jobs (such as  caregivers at nursing homes or housekeepers at hotels), as well as the DREAM Act for young people who arrived in the US at an early age. However, all of these are still only proposals, and not yet laws. You cannot “apply”  under a proposed law.  All immigration proposals still would need to be passed by both houses of Congress , and then signed by the president. But things are looking up, and moving in the right direction.

Even though immigration reform is still being debated and “proposed,” there are many things that you can do right now, so that if and when there is a new immigration law , you will be “ready to go.” One thing that you can start doing is gather documents which could establish your eligibility. For example, some of the types of documents you should already have in your possession, or should start gathering would include:

• Documents relating to your entry into the US. This might include your I – 94, visa, or other such entry document. In other words, how did you get into the US? Gather the documents that prove this.

• Current and expired passports. Gather all your old/expired passports, and make sure you have a current, unexpired passport. Usually, when a person applies for immigration benefits, these documents are requested.

• Documents evidencing presence in the U.S.  Expect the USCIS to look into your actual presence in the United States, showing the time you lived in the US. Acceptable proof of such presence are  your income tax returns, school records, credit card records, medical records, if any,  your Facebook or Twitter accounts and activities.

• All filings with USCIS.  Gather all petitions, applications, and other forms that you have ever filed with USCIS. If you don’t have those documents, there are ways to obtain them from the government. And it is necessary to see your immigration “history,” in the same way that a doctor might want to see a patient’s medical history or file.  It is important to see what you filed in the past, and the information and documents you previously provided to DHS.

• All notices, decisions, and denials from USCIS or immigration court. Did you ever file something with USCIS and were denied?  Were you ever put in removal\ deportation proceedings and/or ordered removed/deported? Copies of those documents will be important in determining whether that old removal order can be reopened, terminated, and the like. You just don’t walk into USCIS with a pending removal order. It needs to be evaluated and resolved.

• All criminal records.  Were you ever arrested or subject to any kind of criminal/court proceedings? Were you charged with or convicted of a crime? Criminal matters could have immigration consequences.  But while waiting for immigration reform, your  criminal matters\convictions should be addressed now, by possibly having the criminal matter reopened and dismissed, or by any other  post conviction relief.

• Divorce\remarriage  Are you separated from your spouse, and now living with another person whom you want to marry and include in your case? Now may be the time to pursue a divorce and remarriage, versus waiting for comprehensive immigration reform to pass and then  start with these “personal” matters.

I again want to emphasize that we are still waiting for comprehensive immigration reform to pass. But, as you can see, in the meantime, there are many things that can already be done in terms of gathering documents and getting yourself ready if and when it finally does pass.  If you are uncertain about your immigration history, or its effect on your future, you may want to already consult with an attorney, who can evaluate your case and situation, and advise you on the best course of action.

Recently, the USCIS published final regulations allowing immediate relatives of U.S. citizens (spouse, parents, child) to request a waiver of the 3/10 year bar, before they depart the U.S. for immigrant visa processing at the U.S. Embassy. This procedure will take effect starting on March 4, 2013, and will greatly benefit:

(a) crewman (or jump ships) who married U.S. citizens, but do not have the benefit of Section 245(i);
(b) people who entered the U.S. without inspection (EWI), who married U.S. citizens, but do not have the benefit of Section 245(i); and
(c) people who entered the U.S. on a K-1 fiancée visa, but did not marry the American who petitioned them, but instead married a different American.

In all these cases, the person is ordinarily not eligible to receive a green card (adjust status) in the U.S., but instead must go back to the Philippines for an immigrant visa, which could trigger the 3/10 year bar. The purpose of this regulation is to shorten the amount of time citizens are separated from their family members who must process their immigrant visas overseas, and apply for the 3/10 year bar waiver.

But before you jump on a plane for Manila, here are some FAQ’s about this regulation:

1. What is the 3/10 year bar?
The 3/10 year bar is a law which basically states that anyone who is out of status in the U.S. for more than 180 days, but less than a year, and then departs the U.S., is barred from returning for 3 years. Anyone who had been out of status for more than one year, and then departs is barred from returning for 10 years. This 3/10 year bar is triggered only when the alien departs the U.S.

2. What is the procedure currently in place for people who are subject to the 3/10 year bar?
Under current law and procedures, when a person has been found to have triggered the 3/10 year bar (by departing the U.S. after being out of status for more than 180 days), the person must apply for a waiver (or forgiveness) at the U.S. Embassy by demonstrating that certain relatives (called “qualifying relatives”) would suffer “extreme hardship” if the waiver is not granted. At present, these qualifying relatives include the person’s spouse or parent who is a U.S. citizen or lawful permanent resident (LPR). A child is not considered a “qualifying relative” for purposes of evaluating the waiver or extreme hardship. However, the alien must apply for the waiver only after he or she departs the U.S. and applies for the immigrant visa at the Embassy. And the adjudication of the waiver may take weeks, months, or even years to be completed. In the meantime, the family is separated for a lengthy period of time, waiting for the waiver to be processed.

3. Who is eligible under the “provisional waiver” process?
The only family members eligible for this new procedure would be immediate relatives (spouse, parent, or minor child) of a U.S. citizen, and only where a U.S. citizen parent or spouse would suffer extreme hardship. However, USCIS “will consider expanding the provisional unlawful presence waiver process to other categories”. Therefore, at the present time, a petition by an LPR (green card holder) relative or an employer would not qualify, or where the “qualifying relative” is not a U.S. citizen spouse or parent. For example, if you are being petitioned by an LPR spouse, you would not be eligible under this process, since it would not be an “immediate relative” petition by a U.S. citizen. Similarly, if you were petitioned by a U.S. citizen child, but do not have a spouse or parent who is a citizen (i.e. your spouse is still an LPR), you also would not be eligible for this provisional waiver program, as you don’t have a “qualifying relative” who is a citizen.

4. What are the benefits of this “provisional waiver” program?
This new procedure would allow immediate relatives, with a U.S. citizen parent or spouse, to already apply for a waiver of the 3/10 year bar, while still in the U.S., and before they depart the U.S. for immigrant visa processing overseas. If the waiver is granted, they would then depart the U.S. (with the approved waiver in hand), and thus would not have to wait several months outside the U.S. to process that 3/10 year bar waiver.

5. Would this provisional waiver process apply to other immigration violations or grounds of inadmissibility?
No. This provisional waiver applies only to the 3/10 year bar. If a person has other immigration violations, such as fraud (assumed name entry), criminal convictions, and the like, which also require a waiver, the person would have to apply for all such waivers outside the U.S.

6. If I’m being petitioned as an immediate relative, do I really need to depart the U.S.?
In many cases, people who are being petitioned as an “immediate relative” are still able to adjust status (obtain their green card), in the U.S. even if they are out of status, worked without authorization, or do not have the benefit of Section 245(i). If a person is eligible to adjust status in the U.S. they should not even think of departing the U.S., and, therefore, trigger the 3/10 year bar. See an attorney, who can determine if you even need to depart the US in order to obtain your green card. Maybe you don’t need to.

7. Are there any people who could benefit from this proposed “provisional waiver” process?
There are still a few categories of aliens who are not eligible to adjust status in the U.S., even if petitioned by a U.S. citizen as an immediate relative. These include: (a) crewman (jump ship) without Section 245(i); (b) someone who entered the U.S. without inspection (EWI), such as snuck across the border, and does not have the benefit of Section 245(i); (c) a person who entered the U.S. on a K-1 fiancée visa, but did not marry the American who filed the K-1 petition, but married a different American instead, and the like. So this regulation could possibly benefit them, if they have no other immigration violations, such as fraud, misrepresentation, etc.

In conclusion, if you think this regulation could benefit you, you should definitely seek the advice of a reputable attorney, who can evaluate your circumstances and status, and determine if it is even necessary for you to depart the U.S., and if so, can assist in preparing and processing this provisional waiver. As you can see, only certain people would be eligible for this provisional waiver.

WEBSITE: www.gurfinkel.com

Four offices to serve you: PHILIPPINES: 894-0258 or 894-0239; LOS ANGELES;
SAN FRANCISCO; NEW YORK : TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)

By Michael J. Gurfinkel, Esq.

In a previous article, I discussedsome reasons why you should consider hiring an attorney in connection with preparing and submitting your DACA request. Here are some more reasons to consider, in connection with the decision of hiring an attorney:

• Have you ever been arrested, charged with, or convicted of any crime? After all, DACA requires that the person should not have been convicted of a felony, significant misdemeanor, or three or more other misdemeanors. What does that mean? Is there any way around that requirement, if you do have a conviction? An attorney could help determine if, despite possible brushes with the law, you could nevertheless still be eligible. Or, an attorney could advise that it may be risky for you to apply.

• Similarly, I know that some people believe they have “no criminal problems,” but it is later discovered that they were convicted. At the time of their conviction, they may not have fully understood how their case was resolved. (Or they did not know the difference between the charges brought against them, and a conviction under immigration law. Or they thought an expungement “erased” the conviction. Or they may have pled guilty to a crime, without being informed of the immigration consequences.

• Did you or yourparents ever file anything with USCIS or INS? In the past, some people would go to an immigration consultant, sign blank forms, and were told that they could obtain work authorization. They then signed the blank forms, not knowing what it was they signed. But if your parents filed anything, and you were included or listed in that filing, USCIS would still have a record of that, which could affect your eligibility. An attorney could obtain and evaluate those documents, to determine if or whether your parent’s case could affect you.

• Even if you are DACA eligible, is there still a way for you to get a green card through your parents? Maybe your parents were petitioned, and you are a derivative under their petition. In order to fully evaluate a child’s eligibility for DACA or other immigration benefits, it may be necessary to evaluate the immigration history of the person’s parents as well. Maybe there’s something in your parent’s immigration history that could benefit you. USCIS has repeatedly stated that DACA does not result in a green card or a pathway to U.S. citizenship. It is merely DHS’ willingness to defer initiating removal proceedings. But maybe there’s something about your parent’s case that may benefit you. Therefore, an attorney could evaluate your parent’s situation as well.

If you believe you are eligible for DACA, you should definitely seek the advice and assistance of an attorney to make sure you are eligible, and to increase your chances of success.

WEBSITE: www.gurfinkel.com

Four offices to serve you: PHILIPPINES: 894-0258 or 894-0239; LOS ANGELES;
SAN FRANCISCO; NEW YORK : TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)

By Michael J. Gurfinkel, Esq.

On June 15, 2012, the Obama Administration announced a new policy of Deferred Action for Childhood Arrivals, which is now being referred to as “DACA.”Additional guidance, and a DACA application form (I–821D) were issued on August 14, 2012, and DHS began accepting DACA applications as of August 15, 2012.

Under this program, the government will defer, or not seek to deport/remove, certain individuals who were brought to the U.S. at a young age. The basic eligibility requirements for applicants are:

1. Was under the age of 31 as of June 15, 2012, meaning was born on or after June 15,1981;

2. Came to the U.S. before reaching his or her 16th birthday, meaning they were 15 or younger when they came to the US;

3. Arrived in the U.S. no later than June 15, 2007 and continuously resided in the US through June 15, 2012, meaning the person resided in the US for at least five years before June 15, 2012;

4. Was physically present in the U.S. on June 15, 2012, and at the time of making a request for consideration of deferred action with USCIS;

5. Entered without inspection before June 15, 2012, or his or her lawful immigration status expired as of June 15, 2012, meaning they snuck across the border or were out of status as of June 15, 2012;

6. Is currently in school, has graduated or obtained a certificate of completion from high school, has obtained a general education development (GED) certificate, or is an honorably discharged veteran of the Coast Guard or Armed Forces of the U.S.;

7. Has not been convicted of a felony, significant misdemeanor, three or more other misdemeanors, and does not otherwise pose a threat to national security or public safety.
If deferred action is granted, the person can obtain work authorization and may be able to travel outside the U.S. (advance parole).

The USCIS has a special form for DACA applicants (I-821D), which can be submitted starting August 15, 2012, along with documentation supporting the person’s DACA eligibility. I know that many people may be asking themselves, “Do I really need an attorney to help me apply? Or can I just do it myself, and see what happens?”

While people can certainly prepare and file their own immigration petitions, applications, appeals, etc. on their own (including a DACA request), there are several things to consider, in connection with the decision to hire an attorney:

• An attorney can help you gather and assemble the necessary documents establishing your eligibility, proving, among other things, your physical presence in the U.S. on June 15, 2012; five years of continuous residence in the U.S., since June 2007, etc. I know that USCIS has already listed some of the types of documents that can be submitted to establish eligibility, such as financial records, school records, etc. You want to make sure that you are submitting correct and verifiable documentation, and that you do not inadvertently submit documentation that may not necessarily be helpful to your case. (In the past, there were other immigration programs requiring a person to establish eligibility, and people would submit fake, manufactured, or simulated documents, which USCIS (or INS) later found to be bogus. So USCIS will be on the lookout for questionable documents. Any fraud in applying could result in instant denial and possible referral to ICE for removal.)

• You cannot file an appeal or motion to reopen or reconsider if your DACA case is denied, (except if your case was denied for 1). Failing to respond to a Request for Evidence (RFE) but you have proof that you had timely responded, or 2). If an RFE was sent to the wrong address.) Thus, it would seem that a request for deferred action is a one-time, one-shot filing. If you do it on your own, and get it wrong, and the case is denied, you may not then be able to undo the damage, because you had used up your one chance. I know that many people think to themselves that they will try it on their own, and if the case is denied, they go to an attorney, to repair the damage. But, as you can see, USCIS is saying that except in two very limited circumstances, you cannot appeal.

If you believe you are eligible for DACA, you should definitely seek the advice and assistance of an attorney to make sure you are eligible, and to increase your chances of success. In a future article, I will discuss more reasons why you should consider hiring an attorney in connection with preparing and submitting your DACA request.

WEBSITE: www.gurfinkel.com

Four offices to serve you: PHILIPPINES: 894-0258 or 894-0239; LOS ANGELES;
SAN FRANCISCO; NEW YORK : TOLL FREE NUMBER: 1-866-GURFINKEL (1-866-487-3465)

By Michael J. Gurfinkel, Esq.

 Recently, there was a story making national news, about a high school student who got stuck in Mexico while applying for her immigrant visa. She would not only miss her high school graduation, but she would also be banned from returning to the U.S. for three years.

According to news reports, this student was brought to the U.S. from Mexico when she was only four years old. It is likely that she crossed the border without any visa (snuck across the border, entered without inspection, or EWI). During the next fourteen years, she grew up pursuing the American dream. Her father was somehow able to become a U.S. citizen and ultimately petitioned her. However, if she entered the U.S. without inspection (snuck across the border), and did not have the benefit of Section 245(i) (i.e. petitioned before April 30, 2001), then she could not adjust status (or be interviewed for a green card) in the U.S. Instead, she would be required to depart the U.S. and be processed for her immigrant visa in Mexico.

By law, a person who has been out of status in the U.S. for more than 180 days, and then departs, could be banned from returning to the U.S. for three years. However, a person’s presence in the U.S. before his or her 18th birthday does not count towards those 180 days. The 180 days of “accruing unlawful presence” only begins upon the child’s 18th birthday. So, when this child turned 18,her attorney calculated the 180 days, and the child left the U.S. for Mexico exactly on the 180th day, in order to be processed for her immigrant visa. Unfortunately, the attorney miscalculated the computations, and failed to take into account that there was a leap-year (i.e. February 29). With the addition of that extra day, the child effectively left the U.S. one day late, or 181 days after her 18th birthday.

When she was being processed for her immigrant visa in Mexico, the US Consul caught the issue, and told her that she was ineligible for her visa for three years. Her attorney tried seeking humanitarian parole, appealed to the State Department (advisory opinion), and went on several national news channels, etc., pointing out that she was a top student and was all set to graduate. Ultimately, a “hardship waiver” was submitted and was granted, enabling the child to return to the U.S. in time for her graduation. So, a near disaster was averted.

However, I think that there are a couple of valuable lessons to be learned from this situation:

1. Don’t leave things to the last minute. In this case, the child had 180 days to depart the U.S. from her 18th birthday. Yet she waited until the very last day. Many other people also wait until the last minute to handle their immigration issues, file petitions, etc. You don’t know what will happen. Why wait until the last minute for such things? If you are working for an employer, have the employer petition for you now (if you are eligible). If you wait until the last minute, the employer may go out of business, sell the business, you may quit, etc. Or if you are married, have your spouse petition you right away. What if you wait and the marriage deteriorates, etc.?

 2. More importantly, why did her parents wait so many years to do something about her situation? Remember, this student was brought to the U.S.at age of four. The parents had fourteen years do something, and waited literally until the “last day” to do something about their daughter’s situation. Similarly, I know of many Filipino families who have had years to do something about their children’s immigration situation, but also wait and do nothing. The child then ages out, etc. In this story, the father became a U.S. citizen. That means that he had first obtained a green card. Unless he was petitioned by a U.S. citizen child, most other types of family and employment based petitions would include the derivative children. Why was the daughter not included at the time her father obtained his green card? Did the father have Section 245(i) eligibility by having been petitioned before April 2001? If so, his daughter also could have benefited from that 245(i). Again, I know many situations where Filipinos are petitioned by a family member or employer, and their petition also included their children, but somehow the children were left out or left behind.

While the child in this particular news story was eventually able to obtain her green card, if you have children, don’t leave their future in the air or to the last minute. You should definitely seek the advice of a reputable attorney, who can analyze their situation, and determine if there is something that could be done now, vs. at the last minute!

Michael J. Gurfinkel is licensed, and an active member of the State Bars of California and New York. All immigration services are provided by, or under the supervision of, an active member of the State Bar of California. Each case is different. The information contained herein (including testimonials, “Success Stories”, endorsements and re-enactments) is of a general nature, and is not intended to apply to any particular case, and does not constitute a prediction, warranty, guarantee or legal advice regarding the outcome of your legal matter. No attorney-client relationship is, or shall be, established with any reader.

WEBSITE: www.gurfinkel.com

Call Toll free to schedule a consultation for anywhere in the US:

1-866-487-3465

(866) – GURFINKEL

Four offices to serve you:

LOS ANGELES ∙ SAN FRANCISCO ∙ NEW YORK ∙ PHILIPPINES

NEW HOPE FOR CHILDREN WHO DID NOT
“SEEK TO ACQUIRE” A VISA WITHIN ONE YEAR
By Michael J. Gurfinkel, Esq.

The Child Status Protection Act (CSPA) enables a child who “aged-out” (turned 21) to nevertheless be processed for an immigrant visa, provided they meet certain eligibility requirements. One very important requirement under Section 3 of the CSPA is that the child must “seek to acquire” his or her visa within one year of when the priority date was current, (or visa became available).

In many CSPA cases, the child’s age is calculated to be under 21. However, for one reason or another, the child did not “seek to acquire” his or her visa within that one year deadline (because of oversight, inadvertence, lack of knowledge of immigration laws, etc.) As a result, the child’s adjustment of status application or immigrant visa was denied.

However, what does the term “seek to acquire” actually mean? How does one go about satisfying that requirement? The USCIS and the Department of State (DOS) have taken a very narrow, restrictive interpretation of this phrase. Their policy and position had been that in order to satisfy the “sought to acquire” requirement, there must have been the actual filing or submission of an adjustment of status application (Form I-485); Form DS-230; or Form I-824 within one year of the priority date being current.

There were various cases that later held that the actual filing of a form or application may not necessarily be required. Instead, some cases ruled that hiring an attorney and/or taking other “substantial steps” to pursue a visa could also satisfy the “sought to acquire” requirement. However, USCIS and DOS declined to follow those decisions, either because they were unpublished decisions or “dicta” (side comments by a judge, which do not directly deal with the ultimate ruling or resolution of the case).

Recently, the Board of Immigration Appeals (BIA) issued a published decision, which could potentially greatly expand the meaning of the term “sought to acquire”. The BIA ruled that satisfying this requirement is not limited solely to the actual filing of a form or application, but instead there could be other ways to satisfy that requirement.

In that published decision, the child was petitioned by his father in the F-2A category (single, minor child of immigrant). A visa became available for this child (or the priority date was current) in March 2004). Therefore, under the CSPA, the child should have sought to acquire his visa within one year, or by March 2005. However, he did not file his adjustment of status application (Form I-485) until October 2005 – more than one year after a visa became available. Therefore, even though his age was calculated to be under 21, he missed the one year deadline to pursue his visa.

The child tried to argue that he had satisfied the one-year sought to acquire requirement because his parents “consulted with a notario about filing an application within that period”. The USCIS maintained that the phrase “sought to acquire” means an actual filing with the USCIS…” (Emphasis added). Therefore, his adjustment of status was denied, he was placed in removal proceedings, ordered removed, and then appealed to the BIA.

In its decision, the BIA noted that the term “sought to acquire” is ambiguous, but agreed that it encompasses more than just the actual filing of a form or application. The BIA listed the types of actions that could satisfy the “sought to acquire” requirement:

1. The proper filing (or submission) of: an application for adjustment of status (Form I-485); Form I-824; and/or Form DS-230, within one year of visa availability.

2. The timely submission of the appropriate form or application to the applicable agency (USCIS, NVC, or Embassy), but the application was rejected for a procedural or technical reason, such as the absence of a signature on the document; and/or

3. Demonstrating and documenting that the failure to timely file within one year of visa availability was due to “extraordinary circumstances” which were “beyond the alien’s control”.

The BIA gave a number of examples of what constitutes extraordinary circumstance, such as actually hiring/paying an attorney to assist in preparing and filing a timely adjustment application, but the attorney missed the one-year deadline of filing, “thereby effectively preventing the alien from filing”. However, merely contacting an attorney for legal advice about initiating the process for obtaining a visa is not enough to satisfy this requirement. You should have actually retained the attorney to process your child’s case.

In this particular decision, the BIA ruled that the child did not satisfy the “sought to acquire” requirement, because he “merely sought legal advice and did not actually file his adjustment application within one year of visa availability”. Therefore, merely seeking legal advice is not enough. However, if you had already hired an attorney to process your child’s case within one year, then this recent BIA case could possibly benefit you. If your child’s visa was denied because he or she did not “seek to acquire” a visa within one year, and you think that this new case may apply to your situation, you should definitely seek the advice of an attorney, who can evaluate your situation, and determine if the denial or refusal could be reopened and/or reconsidered by the government.