Month: January 2009

Joseph, 68 years old US citizen, sent me a disturbing email. He stated that he plans to petition, as his adopted daughter, a 19 year old girl she met in a restaurant bar in Southern Philippines. According to his email, he is single and he has no “intent to marry” this Filipina. He just wants to treat this “child” as his own daughter, to send her to school and give her a good a future in the US.

While technically, this US citizen petitioner will not succeed in his intention of filing a petition as an adopted child for the 19 year old girl, there is still something suspicious about his intentions. Under the Immigration and Nationality Act, to petition an adopted child, the adoption must take place before the child turns 16 years. Obviously, his intentions are suspicious when he mentioned at least three times in his email that he has no intention to marry the young Filipina.

This situation is just the same as a US citizen asking how she may obtain a visitor visa for her 18 year old Filipina girlfriend whom he recently met in Manila. According to him, he plans to marry her girlfriend but wants her to stay in the US first as a visitor. When I suggested fiancé visa, he brushed aside the idea. It turned out that he was a married man and wants her girlfriend to be in the US where he can easily reach her when he wants.

Both cases raise red flags for potential abusive relationship.

Actual Intent

The K1 visa is granted to a fiancé of a US citizen. The purpose of this visa is for the fiancé to enter the US and marry the US citizen within 90 days of his or her arrival. This is the appropriate visa for those wanting to marry their US citizen petitioners. Many immigrant families start through this process of petitioning resulting in success stories.

There are also unfortunate cases of “fiancé” visa holders who were not able to obtain their appropriate lawful permanent resident status. This happens when upon arrival in the US, the relationship of the petitioner and his/her fiancé turns bitter resulting in refusal on the part of the petitioner to file the appropriate petition for their spouse.  Worst is that the petitioning US citizen refuses to marry his/her fiancé within 90 days and the fiancé falls out of status.  Under the law, if the marriage does not occur within this 90 day window, the K1 visa holder must depart the US.

It is not uncommon to see failed or abusive relationships in K1 visa cases. And if this happens, most of the time the K1 visa holders opt to remain in the US even if their US citizen petitioner refuses to sponsor them or even to marry them. In such cases, the K1 visa holder falls out of status and is considered as“TNT” or an undocumented alien.

Reliefs Available

There is a bar to obtaining green card for fiancé visa holders who failed to consummate their marriage with their K-1 petitioners. This means that even if the fiancé visa holder later marries another US citizen, other than his or her petitioner, the law does not allow the adjustment of status to lawful permanent resident. Instead, she shall be required to depart the US and failure to depart will render the fiancé as subject to deportation or removal.

There are reliefs available for those who are victims of domestic violence or have been victims of certain crimes.  The “U” visa may be applied by a person who has suffered substantial physical or mental abuse as a result of having been a victim of one or more crimes. Among those enumerated crimes are rape, trafficking, domestic violence, sexual assault and abusive sexual conduct.

Another type of visa that may be availed of if the fiancé turns out to be a trafficking victim is the “T” visa.  It is granted to those who have been subject to “severe trafficking” which is defined as the use of force, fraud or coercion for sex trafficking or involuntary servitude.

Laws Are Not Substitute to Vigilance

It is difficult to determine in fiancé visa petitions on whether the couple are planning to build a life together or are just using each other for their selfish interests. Meeting one’s fiancé through the internet and proposing marriage after few months of communication raises a red flag. True, there is such thing as love at first sight but this is not often the case.

Beneficiaries of fiancé visa petitions must be on their own lookout when they migrate with their US citizen petitioner. They should get to know the person they intend to marry well and should familiarize themselves with the new environment of their future US residence. It will always be good to identify support network whether it be a relative or a friend in the event no marriage occurs or if the marriage fails.

Indeed, there are safeguards placed by legislation to protect abuses of fiancé visa petitions. But laws are not substitute to vigilance. Future fiancé visa holders must be alert for signs that may indicate potential abuses.

(Tancinco may be reached at law@tancinco.com or at 887-7177)

Jenny entered into a contract of employment with a US recruitment agency in 2005. She was told that she will be working in a US hospital as soon as the visa is made available. Her petition for I-140 was processed and has a priority date of September 2005.

Having already waited one year for her immigrant visa, Jenny ran out of resources and was forced to accept a nursing job in Australia. She has been working in Australia for more than three years now but still has not abandoned her dream of working the US.

During Jenny’s visit to the Philippines for the holiday season, she intended to ask her recruitment agency on when exactly will she receive her visa. She has been hearing about businesses and facilities closing in the US and is wondering if her approved petition will be affected by the current financial crisis.

Retrogression

While visas for registered nurses fall under Schedule A, which is the category that certifies a US shortage occupation, the processing for these visas is still taking a long time. Unlike before where the category for registered nurses was placed under a special classification that added more visa numbers, the category of registered nurses is incorporated under the third employment-based preference category (or EB3).

There are only certain numbers of visas that are available for each given fiscal year. Since there are more applications/approved petitions than the number of visas available, there is now a backlog in the issuance of visas which is often referred to as retrogression.

For the month of January 2009, the US Department of State’s visa bulletin indicates that the visa processed for nurses are those that were filed on May 2005. This means that the petitions with priority dates of May 2005 are the ones being issued visas consular offices.

Changes in Circumstances

When registered nurses interested in working in the US signs contracts with recruitment agencies, they are expected to work for the designated US facility or hospital for certain period of time. Most of the contracts signed show a two or three year commitment to work for the petitioning employer.

If those being processed for visas are those with priority dates of 2005, there are probable changes in circumstances that may affect the grant or denial of the visas.

The lengthy period of waiting may have resulted in changes on the need of the US employer. Because of budget constraints that are being experienced by most public institutions, the US hospitals dependent on federal, state or city funding may have resulted in the termination of employees. In the City of San Francisco, there is a plan to terminate several hundred employees from the Department of Public Health because of budget issues. The public hospitals have started terminating employees also to reduce their expenses.

Terminating public employees in public hospitals or facilities has a severe effect on approved petitions on behalf of foreign nurses. This holds true also for private institutions. The Immigration and Nationality Act requires the US petitioner to have the financial ability to pay their employees for the foreign worker to be granted the immigrant visa. If the petitioner has no more ability to pay additional workers, even if the petition was approved before 2009, the immigrant visa petition will be adversely affected.

USCIS Memo on RN Petitions

The US Citizenship and Immigration Services issued in December 2008, a Memorandum regarding the processing of petition for registered nurses. According to the USCIS Ombudsman, the need for registered nurses remains critical and that the processing for their immigrant visa petitions must be expedited.

This Memorandum is a significant proof of the need to give important consideration to the processing of immigrant visas for registered nurses. The processing time that is addressed in this document is the processing of the Petition for Immigrant Worker or the I-140. This petition, if approved, will have a priority date that will indicate when visa is finally going to be issued. Unfortunately, even if the proposed expedited processing is established and the I-140 petitions are approved, there will still be waiting times because of retrogression.

Legislation passed by US Congress adding more visas to the RN petitions, or even better, exempting them from the visa quota, will be the faster and more practical solution to obtaining faster visas for the RNs.

Remaining Hopeful

The message we send for the New Year is all about remaining hopeful despite the many challenges of a US financial crisis and a global recession. The same remains true for aspiring Filipino RNs who wants to work in the US.

The demand for registered nurses is still high. The healthy financial situation of each petitioner must be intact to continue the processing of the immigrant visa petition. For the registered nurses who have waited for many years, it is prudent to research on the existence of the US employer considering that many US businesses and institutions have been adversely affected by the financial crisis. The good news is that the coming Obama administration has health care as among the top on his priority list. Let’s be hopeful that real solutions be taken in the next 100 days after his inauguration. Happy New Year to all!

(Tancinco may be reached at law@tancinco.com or at 887 7177).