Caregivers, other
workers in US



SKILLED workers, professionals and unskilled workers in the United States who have become illegal aliens (normally by overstaying, working without employment authorization, entering using fraudulent documents) may still be able to become lawful permanent residents through an individual amnesty program under Section 245(i) of the Immigration and Nationality Act -- as long as they have an immigrant petition filed by a relative or a labor certification filed by an employer on or before April 30, 2001.

Some workers -- who are now part of the TNTs [illegal aliens] in the US -- nurture a false sense of security that because they have a pending or approved labor certification, they cannot be deported or removed from the United States by the Bureau of Immigration and Customs Enforcement (BICE) the deporting and removing authority that replaced the Immigration and Naturalization Service (INS).

Section 245(i) ended on April 30, 2001. It has not been extended. There are attempts to restore this provision but these remain legislative attempts. The current emphasis of the United States on national security and opposition to mass immigration prevents Section 245(i) from resurrection.

In the meantime, workers (TNTs) who have been out of status, or working without specific employment authorization for 180 days or more shall be subject to a three-year bar from the United States if they leave the US and return to the Philippines. Remember, the three-year bar shall take effect only if you leave the US. The bar starts from the date you leave and shall be imposed on you when you apply for readmission into the United States.

Readmission in this case would either be (1) presenting your passport and current US nonimmigrant visa, most likely the B-1/B-2) before a BICE officer at a port of entry; (2) appearing before a consular officer for the issuance of an immigrant visa -- either based on an approved labor certification or any other approved immigrant visa petition or (3) presenting your immigrant visa before a BICE officer at the port of entry.

If the BICE officer detects your previous unlawful presence, you will not be allowed into the US, your visa cancelled and barred for three years.

If you had been out of status or employed without specific authorization for one (1) year or more, the bar is 10 years. The three- or 10-year bar will take effect only if your unlawful presence is discovered or determined by either a BICE officer, an immigration judge during a deportation/ removal hearing or a consular officer.

If you or a relative/friend is in such a situation, the following questions could be asked from the lawyer or the employer:

1. Does the filing of the labor certification -- or even its approval -- protect the alien from being deported or removed? Do not be lulled into complacency by an assurance from a lawyer that "Don't worry, I shall protect you." Of course, the lawyer could "protect" you by appearing on your behalf with the BICE or immigration judge such as requesting for a reduction of your bail bond so that you could be released from detention while your deportation or removal hearing is in progress. But the main issue is the fact that the filing of the labor certification in itself does not protect you from being ordered deported.

2. Does the filing of the labor certification -- or even its approval ö allow the alien to legally work for the employer? The answer is "No, it does not." Most workers in this situation are working under the table or working without being included in the payroll. Why? Because the employer cannot and should not hire an illegal or undocumented alien. If the employer is not deducting social security taxes and other taxes from you (merely paying you cash ö and generally lower than what is the prevailing wage) that is a very good indication that you are illegally employed ö and therefore, deportable.

3. How will the attorney protect you? An alien who is being deported or removed from the US must provide a reason why he/she should not be removed (for having been unlawfully present, working without employment authorization -- or both). Therefore, an attorney will represent (protect) you with the BICE and before an immigration court by citing other reasons (called deportation or removal relief) but not just because you have a labor certification pending -- or approved -- that should enable you to stay in the United States while the deportation case is ongoing.

Of course, you have to pay the attorney another (separate fee) because it is usually not part of what you had agreed to pay the lawyer for the labor certification and immigrant petition. The truth of the matter is, the more problems you have in the US the more an attorney will "protect" you. No respectable lawyer worth his State Bar license would put up a flimsy defense on your behalf -- such as merely saying because you have a pending labor certification, you should be allowed to stay in the United States. I would love to be proven wrong in this matter.

4. What other options are available to you? Legitimate, bona fide marriage to a US citizen. If you are married, it means your present or existing marriage must have been terminated by divorce or annulment -- or in very few cases, due to the death of the spouse. Applying for asylum is also an option but only if the application would not be considered frivolous and if filed within one year from your admission into the US. Otherwise, if you had been in the US for more than a year and you have not submitted your application for political asylum, your application would likely be denied.

Two other long-shot options (but options nevertheless) are (a) applying for cancellation of removal -- if you have a qualifying relative (spouse, parent or child who is either a US Citizen or green card holder -- and had been physically present in the US for at least 10 years; (b) claim that you are a US citizen by virtue of the fact that you were born before July 4, 1946, or by derivation, from your parents who were born in the Philippines when the country was a territory of the United States from 1898 to 1946. This form of deportation relief had been raised "and defeated" up to the District Court level. The US Supreme Court has refused to revisit the case in the matter of Summerfield vs. INS submitted before the Ninth Circuit Court in California. There are other district courts, some lawyers would argue, and therein exists the realm of possibility.

The third option would be (c) having a Senator or Congressperson file a private bill on your behalf requesting that you be granted lawful permanent residence because of your contributions to American society or because of your talent, skills, experience and perceived contribution to the national interest and security of the United States. Knowing where Bin Laden or Saddam is perhaps?

Otherwise, since you are already out of status, changing your status to another nonimmigrant category is out of the question. You are therefore running out of time, money or both.

Crispin R. Aranda is a US-based immigration specialist and executive director of the Immigrant Visa Center, an immigrant advocacy firm with offices in the US and the Philippines. You can get in touch with him through usvisacenter@yahoo.com or by phone in Quezon City +632 411-0806; +632 414-2655; +632 373-6799 or in San Francisco, California at +415 834-1052.