Month: April 2009

Categories
Immigration Round Table

Abandoning or Preserving Green Card Status

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Dear Atty. Lou,

I immigrated to the US in 1994 based on the petition of my mother. My family and my four children migrated with me. As my children were growing, my husband and I decided to go back to the Philippines in 2003 and send our children to school there. We resided back to the Philippines but made it a point to return once a year as per advise of our close family friends to avoid having problems with our green cards.

In 2005, we were advised to file for re-entry permits. We applied twice and the last re-entry will expire this year. During our last trip here in the US, the Customs Border Protection (CBP) Inspector gave us a warning that he will take away our green cards and put us in deportation court if we did not stay in the US longer. We showed him our re-entry permits but according to him that this is not enough proof to show that we are not abandoning our lawful permanent resident status.

I am now confused Atty. Lou, why is it that despite having reentry permits we are still having problems at the port of entry? When is it that we are considered to have abandoned our resident status?

Concerned With Status

Dear Concerned,

There is a lot of misinformation about the length of time that one is allowed to stay outside the US without jeopardizing his status. A green card holder will risk losing permanent resident status if there is a finding of abandonment of permanent residence. One is to be regarded as maintaining status after a temporary absence abroad if the trip is considered temporary. This means that the trip (1) is for a relatively short period, fixed by some early event; or (2)  will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time. The visit will be considered “temporary” only if the green card holder has a continuous, uninterrupted intention to return to the United States during the visit. These standards are from the US Court of Appeals for the Ninth Circuit ruling in the case of Singh v. Reno 113 F.3d 1512.

If the green card holder stays outside the US for over a year s/he runs the risk of losing the green card. Also, there is a provision of law which requires the green card holder to return from a trip abroad in less than 180 days to avoid being regarded as seeking admission. Most of the green card holders interpret this to mean that the trip outside the US should not exceed six months.

Immigration and Nationality Act §101(a)(13) considers the green card holder as having failed to maintain status if he or she “has abandoned or relinquished that status” regardless of the time spent abroad. This means that the “intent” rather than specific time frames is the critical element in determining whether the individual abandoned or maintained his/her lawful permanent resident status.

It is true that re-entry permits will allow the green card holder to return to the US after a brief temporary stay abroad up to two years. However, this does not mean that the ties in the US are totally abandoned. There still has to be proof that the green card holder maintains strong ties in the US and that the intention to stay in the US is clear after the trip abroad. Perhaps, during your interview, there was no proof presented that you plan to reside in the US.

Possessing a re-entry permit does not prevent a Customs and Border Protection inspector at the US Port of Entry from inquiring into the reasons for a lengthy absence. The inspector may still find abandonment based on actual intent of the green card holder.

The re-entry permit must be filed by the green card holder while still in the United States. As of last year, all applicants for re-entry permit will be scheduled for biometric appointments. If the applicant departs the US before biometrics is taken, the application may be denied. It is important to go through the biometrics which may be expedited before departing the US to obtain the re entry permit.

I hope this information is helpful and that you will decide which country you wish to permanently reside.

Atty. Lou

*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com

Categories
Global Pinoy

Can Stepchildren Petition their Stepfather?

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Dear Atty. Lou Tancinco,

I have been reading your article at the Philippine Daily Inquirer.  I have some questions.
 
I am a 44 years old widow.  My kids were born in New York City when my husband was holding a J1 visa as a medical resident/ fellow when he was still alive. He died 10 years ago.  I  am planning to get married again, if my new husband will adopt my kids who are now 16 and 13, will there be a any problem since they are American citizens? Can they still petition me and my new husband when they reach the right age?
 
A Doctor’s Widow

Dear Doctors Widow,

Adoption has the effect of creating a parent-child relationship with the adopted children. The adoptive parent will have legal responsibilities to the children when an adoption decree is granted by the appropriate judicial court.

The fact that the children were born in New York and are US citizens will not have any impact on the adoption by your future husband. The factors that are taken into account in adoption are the ability of the parents to perform their duties as adoptive parents and whether the best interest and welfare of the adoptive children will be served by the adoption process. The citizenship of the child will not be a major consideration as long as the biological parent gives voluntary consent to the adoption process.

When children of Filipino parents are born in the United States, they become US citizens by birth. However, as children of Filipino parents, the Philippines also consider these children as Filipinos. For this reason, these children are considered as holding dual citizenship.

For purposes of petitioning parents of US citizens, you have to wait until your child turns 21 years old before he/she can file a petition for you. As far as the petition for their stepfather, you have to marry him before the children turns 18 years old to establish the stepfather-child relationship for immigration purposes.

Under the Immigration and Nationality Act, a stepchild relationship will be created for purposes of immigration petition if the marriage creating the stepchild relationship occurred before the child’s 18th birthday and that at the time the immigration petition is filed, the stepchild relationship still exists.
Marriage Issues and Stepchild Petitions

Aside from the fact that the stepchild relationship is created before the child’s 18th birthday, it is important to note that the marriage must still be valid at the time the petition is filed and upon issuance of the immigrant visa.

If for some reason, the stepparent and the biological parent are separated when the petition is filed, the petition may still be approved as long as there is no legal separation or divorce that is filed. In addition, there must also exist a continuing family relationship between the stepparent and stepchild.

You indicated in your letter that you will soon re-marry. I assume that this marriage is a good faith marriage with the intention to build a life together with him and your two children. There are certain marriage issues which may be examined by the consular officers in determining whether this marriage is valid. You should be ready to show proof of a valid marriage during the interview process for the immigrant visa. The law is very clear that no immigration benefits may be conferred to your future husband if it is discovered that the marriage is a fraudulent and was entered into for immigration purposes only. This rule applies even if the US citizen children are innocent about the sham marriage and even if this marriage is not legally terminated.

Good luck and I hope that this information is helpful.

Atty., Lou Tancinco

*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her main office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808 or their Manila office at 887 7177;  check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)
 

Categories
Immigration Round Table

Nurse Wants to Have Visa of Husband Cancelled

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Dear Atty. Lou,

I am nurse who came to the US in Dec. 2004. My spouse and two minor kids followed in March 2005. All of us are green card holders. My spouse stayed with us in 2005 only for 3 months and decided to go home to the Philippines and came after 11.5 months in 2006. A few months from his arrival in the US, news came to me that he has another family in the Philippines with two kids. I was not aware of the existence of such until my friends emailed me the birth certificates of his children ages 8 and 6.

My husband still denies that he has another family but just the same I filed an annulment case in the Philippines last May 2007. This case is still pending. Likewise, I learned his paramour had graduated from nursing which gave more suspicion that I was just used as an avenue for them to come to the US.

Is there any way that I can have his green card cancelled? What benefit will I gain if I file a divorce here pending decision of my annulment in the Philippines?

Unhappy Spouse

Dear Unhappy Spouse,

Your husband immigrated to the United States as your “following to join” beneficiary.  To qualify as a spouse beneficiary of an employment based visa petitioner, there must be a qualifying spousal relationship. Based on your letter, it appears that you are married to your current spouse but it is not clear if he is also married to the mother of his other children. If there was a pre-existing marriage before you married your spouse, then there is a ground to seek a revocation of the permanent resident status. This means that because of the pre-existing marriage, your marriage to him is not valid and therefore there is ground to rescind the green card that was issued to him.

On the other hand, if your spouse has no pre-existing marriage and you have doubts about her intentions of marrying you, then, you may have the resident status cancelled only if you have proof that the marriage was not entered into in good faith. The burden will be on the US Citizenship Immigration Service, through evidence submitted to this agency, to show that the marriage was not in good faith. As regards your second question, there is nothing to gain if you have two divorce judgments. One valid divorce decree or dissolution judgment should suffice to dissolve the marriage.

Atty.Lou

Dear Atty. Lou.

 I am an American citizen. I offered marriage to an overstaying visitor who is currently in the process of her divorce. Should she accept my offer, get married to me, get petitioned by me as spouse and granted a temporary green card, how soon can she visit the Philippines from the date of petition?

Special Friend

Dear Special Friend,

If your offer of your marriage to this overstaying visitor is just for purposes of conferring immigration benefits for her, then it is not advisable to pursue this marriage. Unless the marriage was entered into in good faith with the intention of living as husband and wife, the petition for immigrant visa may not be validly granted. If it is a good faith marriage, the current processing time to adjudicate adjustment of status is now six to eight months barring security issues that may arise. Good luck.

Atty.Lou

*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com

Categories
Global Pinoy

The Agony of Waiting for the Green Card

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The policy behind many provisions of US immigration law is to uphold the value of families and to promote family unity. We all know that strong family ties create vibrant society. It is ironic that if family unity is an important American value and considered the cornerstone of society, the US immigration rules still do not address the severe backlog in the system. These backlogs create a lengthy processing time causing family members to wait many years before they are finally granted visas.

The Severe Backlog

For family based petitions, the US law allows only issuance of 480,000 family sponsored immigration visas annually. This is the world wide quota for all future immigrants.

The quota of 480,000 is reduced by the number of immediate relative visas and humanitarian parole granted. This means that State Department deducts the number of visas that are available to future immigrants by the number of visas granted to spouses, minor children and parents of US citizens resulting in the minimum number of visas available for legal immigration. As a result of the reduced the number of visas, a lengthy wait for family members is created.

For Filipino nationals, petitions by US citizens on behalf of their adult children may take anywhere from 16 to 18 years from the date of the filing. This April 2009, State Department Nation Visa Center is processing the visa petitions for adult –married children that were filed on June 15, 1991. On the other hand, petitions on behalf of siblings of US citizens are taking more than 23 years before visas are finally issued.

Considering the lengthy process, it is not surprising that crisis is created within the family as a result of long separation. Usually these petitions were filed for family members who are at the prime of their lives but are not granted the visas until they reach retirement age.

Separation Anxiety

In view of global migration, separation of families became a common occurrence. Either parent usually makes the decision to migrate abroad for economic reasons. In the US, the reunification of the families is still the motivating factor for patiently waiting many years. Unfortunately, more and more families are affected by this severe backlog created by the system making it a necessity to amend the current immigration law which admittedly is broken needing a fix.

Proposed Comprehensive Immigration Reform

When one hears of the comprehensive immigration reform what comes to mind is the “legalization” or granting of amnesty to the millions of undocumented immigrants in the United States. However, it is important to point out that some of the provisions in the CIR also attempts to alleviate the severe backlog on family petitions.

The proposals for change includes the following: (1) eliminating arbitrary limits on family based immigration; (2) the number of visas for immediate relatives of US citizens should not counted against the total number of visas available; (3)increase the number of visas available with high backlogs and that includes the Philippines and (4) treat the spouses and minor children of lawful permanent residents as immediate relatives so that no petition is actually required upon receipt of green card.

For Filipino nationals, what is interesting also is the family reunification provision for descendants of Filipino World War II veterans. This provision in the Comprehensive Immigration Reform will give immediate visas to children of Filipino World War II veterans without being subjected to the limits of immigrant visas available.

Fixing the System Will Stimulate the Economy

The reality of the lengthy waiting times is lengthy separation. This results most of the time in creating an incentive for family members to enter the US or remain in the US unlawfully. There must be a way to alleviate the backlog through the proposals in order that the immigration system comports with realities and encourages respect of the law and not otherwise.

On the other hand, fixing the broken immigration system will help in stimulating the US economy.. Families who live together usually pool their resources together to build their businesses. As soon as they start their business and when they are successful, they purchase home and become consumers contributing to the economy.

Bearing the Agony of Waiting

Depending on the reasons for separation whether it is to better the future of the next generation or simply for economic reasons, the rationale for waiting for many years may be worth the wait after all. There is no skipping the process at this moment. We remain hopeful that effective advocacy for the immigration reform will soon CHANGE the system and all those who waited will eventually be rewarded.

(Tancinco may be reached at law@tancinco.com or at 8877177)

Categories
Immigration Round Table

CSPA Freezes Age of Minor Child

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Dear Atty. Lou,

My husband has an approved petition for his under 21 year old son. However, his son will be 21 years old this 8 April 2009. The petition was only approved on 3/24/2009. Please let us know what we can do so he could still avail of the benefits derived from that approved petition. What are the actions then to be taken. Your immediate response will be greatly appreciated.

AT Stepmom

Dear AT Stepmom,

You did not indicate in your letter your husband’s status as a petitioner. If he is a US citizen, then he may avail of the provisions of the Child Status Protection Act (CSPA) The CSPA provides that if a U.S. citizen files a Petition for Alien Relative (Form I-130) on behalf of his/her child before he or she turns 21, the child will continue to be considered a child for immigration purposes even if USCIS does not act on the petition before the child turns 21. The date of filing of the petition is the CSPA age of the child. Hence, if the US citizen files the petition when the child was 20 years old and no approval is yet received from the USCIS after he had turned 21 years old, the CSPA age is still 20 years and he shall still be considered a minor child.

In case your husband is still a green card holder, then he may still benefit from the provision of the CSPA when the priority date becomes current under second preference. Children of lawful permanent residents benefit if a Form I-130 is filed on behalf of their children and children of principal applicants in preference categories. There is a mathematical formula used to calculate the CSPA age. This is determined on the date that the visa, or in the case of derivative beneficiaries, the principal alien’s visa, becomes available. The CSPA age is the result of subtracting the number of days that the immigrant visa petition was pending from the actual age on the date that the visa becomes available. If the ‘CSPA age’ is under 21 after that calculation, the child will remain a “child” for purposes of the permanent residence application.

Hence, in your particular case, if your husband is a US citizen, your stepson will still be processed for the visa as an immediate relative of your husband and his CSPA age is less than 21 years old which is the age at the time of the filing of the petition. You have to wait for the checklist or the visa processing papers from the National Visa Center which will soon be mailed to you. As soon as you received these papers, your husband may begin the process of obtaining the immigrant visa for his son.  Good luck.

Atty. Lou

*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808; email at law@tancinco.com or check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com