August 19, 2007
THE ILOCOS TIMES - FEATURE

IMMIGRATION GUIDE (16)
Atty. Emmanuel Samonte Tipon

Has USCIS declared war on FilAm V visa holders?

A flurry of Notices to Appear (NTA) before the immigration court to show why they should not be removed (deported) from the United States have been sent by the U.S. Citizenship and Immigration Services (USCIS) to Filipino American V visa holders.

As early as January this year, we wrote an article in a Filipino American newspaper that V visa holders who had not applied for adjustment of status (AOS) before the expiration of their 2-year authorized period of stay faced deportation. Or even if they had applied on time, if they failed to apply for extension of their authorized stay and their AOS was not adjudicated within the 2-year period, they still faced deportation.

Our prediction has turned out to be true. At least 3 Filipino-American V visa holders who recently received NTAs contacted us. We anticipate that there will be more FilAms being placed in removal proceedings, since hundreds, if not thousands, of Filipino Americans were admitted to the U.S. on V visas. Many did not do what the USCIS expected them to do – either due to ignorance or they talked with “consultants” who did not know what to do or gave bad advice.

The charge against these V visa holders is that they have remained in the U.S. beyond the period of their authorized stay.

This is similar to the charge against aliens who overstay their tourist or other nonimmigrant visas and who become TNTs (tago ng tago) as they say in Tagalog or “hiding and hiding” in English.

A number of V visa holders who failed to file on time but contacted us for assistance early enough have adjusted their status and gotten their green cards.

Who are V visa holders

V visa holders are alien spouses and minor children of lawful permanent residents who were allowed to enter the U.S. on nonimmigrant visas to await the processing of their immigrant visas here rather than in their home country.

Congress created the V visa category in 2000 by enacting the Legal Immigration Family Equity Act which added section 101(a)(15)(V) to the Immigration and Nationality Act in order to promote family reunification. Without the V visa program, these alien spouses and children would have waited in their home country for about 5 years before an immigrant visa became available. To be eligible, such aliens must have been petitioned before December 21, 2000 and their petitions must have been pending for 3 or more years or the petitions had been approved and 3 years had elapsed since the filing date.

When the alien spouse or child arrived in the U.S. they were given 2 years to remain. During this 2-year period, they were required by USCIS to file for AOS, assuming that a visa became available. USCIS says that they ought to have filed also an application for extension of their stay if the AOS could not be adjudicated within the period of their authorized stay. Otherwise, says the USCIS, even if they filed their AOS within the 2-year period, if the AOS was not adjudicated within the 2-year period, and they did not file an application for extension of their stay, they would be considered to have failed to maintain their lawful status continuously since entry, and therefore are ineligible for AOS.

Life act does not limit V visa holder’s stay to 2 years

It is our view that when V visa holders arrive in the U.S., immigration authorities cannot limit to 2 years their period of stay because the LIFE Act which created V visas does not provide any limitation on their stay. Any rule or regulation that immigration authorities have adopted to that effect is ultra vires (beyond their legal power or authority).

V visa holders should be allowed to stay for the duration of their status, that is, until the processing of their immigrant visa is completed since that is the purpose of their being given V visas – to complete the processing of their immigrant visas in the U.S. rather than abroad. This could take more than 2 years.

V visa holders should be treated like student visa holders who are allowed to remain in the U.S. for the duration of their status as students, since that is the purpose of their coming here – to complete their schooling. Immigration authorities cannot – and do not - restrict their stay to 2 years because their schooling might not be completed in 2 years.

There is no failure to maintain status

Immigration authorities also contend that V visa holders who did not file an extension of stay and whose application for AOS was not adjudicated within their authorized period of stay of 2 years failed to maintain their status continuously since entry, and therefore their AOS should be denied. This is contrary to their own policy directives.

The Acting Executive Associate Commissioner wrote a Memorandum saying that “aliens with properly filed application for adjustment of status . . . will be considered aliens present in the United States under a period of stay authorized by the Attorney General.”

Suit in federal court

Last year, we drafted a complaint against the USCIS that was filed in federal court in collaboration with Atty. James A. Stanton to prevent the deportation of a V visa holder whose application for AOS that she prepared herself was denied because it was filed after the expiration of her 2-year period of authorized stay. The USCIS sought extensions of time to file their answer to the complaint.

Meanwhile, the V visa holder’s husband became a naturalized citizen. We filed a new AOS application for her which the USCIS granted and she got her green card. Thus, it was no longer necessary to maintain the case.

Otherwise, this case would have provided the opportunity to test the validity of the USCIS’ actions against V visa holders.

There is a need for another case to be filed in federal court against the USCIS by V visa holders who have not yet been placed in removal proceedings to prevent their being placed in such proceedings.

Relief

V visa holders in removal proceedings should not take a cavalier attitude. They should immediately consult an excellent lawyer who is thoroughly familiar with V visas and who has successfully appeared in immigration court.

(Atty. Tipon is from Laoag City. He holds a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from U.P. He practices law and writes law books. Office: 905 Umi St., Suite 201, Honolulu, HI 96819. Tel. (808) 847-1601. E-mail: filamlaw@yahoo.com. Website: www.ImmigrationServicesUSA.com. Listen to KNDI Honolulu radio 1270 AM on your radio dial every Friday morning between 6:30-8:00. This article is for general information only and is not intended as legal advice.)

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Copyright 2007 Ilocos Times. All rights reserved.
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