Month: July 2010

Twenty-one years ago, William was petitioned by his US citizen brother.  This petition was filed when William’s child, Charlotte, was still a minor. Now Charlotte is 28 years old and while still single, she is still under the physical care and custody of her father. Charlotte had an accident a few years back and had been disabled since.

The National Visa Center of the US Department of State (DOS) sent William a letter informing him that the visa petition was filed in 1989 is now ready to be processed. He was asked to sign a Choice of Agent form to begin the process. William noticed that in the letter, only his wife Cecilia and him were listed as applicants for the visa. Charlotte was no longer included in the petition.

Prior to responding to the letter, William consulted with his brother’s counsel and he was told that Charlotte was no longer included in the petition because she aged out or turned twenty-one while the petition was pending. If William decides to obtain his immigrant visa and becomes a green card holder, he may then petition his only daughter Charlotte. Unlike other immigrant visa applicants, Charlotte may not be considered as a “derivative” beneficiary child because she is now an adult.

William believes that this is totally unfair for her child to be left behind. Charlotte was only seven years old when the petition was filed in 1989 and that it was the lengthy waiting period that caused her daughter to aged out. He heard that if he petitions Charlotte as an adult child, this petition will fall under a second family based category and it will take at least ten years before his child will be processed for the visa.

In his desire to finally migrate to the US where his siblings and parents live, William searched for solutions to his predicament. He still wants Charlotte to travel with him when he goes to the US. He heard about “recapturing” priority dates so that the adult child’s own petition may have the priority date of his parent’s original petition, which in this case is 1989.

Numerical Limitations

There are only certain numbers of immigrant visas available in a given year. The US Department of State (DOS) allocates only 226,000 visas, worldwide, every year under the family based preference category. Since there are more visa petitions than the number of visas allocated, severe backlog in processing of petitions are created.  The countries with the most visa applications backlogs are Mexico, China, Dominican Republic, India and the Philippines. As a system for processing the visas, the “priority dates” became reference point to determine which petition will be processed for a visa.

Priority date is the date the US citizen or green card holder files the petition with the US Citizenship and Immigration Service. When a petition is approved, the priority date is also indicated in the approval notice as the date of filing of the petition and not the date of approval. This rule applies to family petitions.

The priority dates for processing of visas are being monitored by the DOS, the agency that comes up with a monthly “visa bulletin.” This bulletin may be accessed from the DOS website at www.travel.state.gov. For the month of July 2010, and referring to the visa bulletin, the petitions filed in April 1989 by US citizens on behalf of their brothers or sisters are being processed. This means that the waiting time is more or less twenty years for this type of petition.

Priority Dates of Filipinos

A closer look at the visa bulletin will reveal that Philippines and Mexico are the countries with the most backlogs in visa petitions. Philippines fourth preference, which is the sibling petition, is the worse considering that the petitioned brother/sister will have to wait for two decades before a visa actually processed.

Interestingly, only for Filipino nationals, the petitions by green card holders for “adult unmarried” children under the second preference-b have advanced priority dates than petitions by US citizens also for their “adult unmarried” children under the first preference petition.  More Filipino immigrants applying for citizenship and filing petitions as US citizens caused this mind-boggling situation to happen. In an attempt to correct the apparent favorable treatment to green card holder petitioners over US citizen petitioners, legislation in 2002 called the Child Status Protection Act was passed allowing an option to stay in the second preference even if one becomes a US citizen. This is called the  “opt out” provision where a letter is sent to the US embassy indicating the desire to keep the petition under the second preference for a faster processing time.

Challenging the Priority Date Rule

When it takes several years for visas of adult children to be processed, the very core policy behind immigration, which is family unity, is subdued. This current state of chronic backlogs in family petitions is definitely distressing to many who want to join their families in the US. In one Board of Immigration Appeals case, Matter of Garcia,(BIA June 16, 2006) the government agreed that the priority date of the principal applicant in the fourth preference petition shall be recaptured by the petitioned child who aged out. This is not a precedent decision and is not followed as a general rule by the DOS. However, there is also the case of Matter of Wang (25 I&N Dec 28, BIA 2009) which is currently pending before the Court of Appeals, 9th Circuit, where petitioners are seeking court interpretation of the Child Status Protection Act that will actually recapture priority dates of the principal applicants like in the case of William.

The Matter of Wang case is still pending and we are all waiting for a favorable interpretation by the Court of Appeals. If the petitioners prevail in this case, then, more priority dates will be recaptured resulting in faster adjudication of children who aged out while their petition is pending. This remains to be seen.

(Tancinco may be reached at law@tancinco.com or at 02 887 7177)

Julieta has a love child from a prior relationship with a married man.
After giving birth to her child named Julianne, she moved from her home province in Southern Mindanao to Manila. There, she met James, her future husband,  who is a US citizen.

In 2008, Julieta arrived in the US with a fiancé visa together with her minor child Julianne. Within 90 days of her arrival in the US, the couple married in a simple ceremony in Southern California. The first year of their marriage went well and they lived as a happy family. One day, Julieta heard her 3 year old daughter crying and the young child showed signs of sexual abuse. Julieta confronted her husband about this but he became very violent. James denied any wrongdoing and he began to physically abuse Julieta. He also started to force her to having sex with him.

 At the time the abuses happened, Julieta possessed only a conditional resident status. She was afraid to tell the authorities about the abuses for fear that she would be deported. Her decision to continue to stay with her husband drastically changed when she caught James assaulting her minor child. Instead of reporting the matter to the police, however, Julieta left the family home with Julianne and temporarily stayed in a friend’s house in San Francisco. After a few days, Julieta decided to depart back to Manila with her daughter.

 The case of Julieta may not be a common occurrence but there are many victims of crimes who are not knowledgeable about their rights and the protections available to them despite their immigration status.

Providing Protection to Victims

On July 15, 2010, the US Citizenship and Immigration Services (USCIS) announced that the agency approved 10,000 “U” visas. According to the USCIS press release, the approval of 10,000 is an important milestone for the government as it meets its goal of offering immigration protection to victims of crimes and strengthens law enforcement efforts to combat crimes. The announcement by the USCIS emphasizes also that it met its statutory limit of 10,000 U visas for the fiscal year. They will start issuing new U visas again beginning October 2010.

The “U” Visa

 The U visa was created with the enactment of the Victims of Trafficking and Violence Protection Act. The “U” nonimmigrant status provides immigration protection to crime victims who have suffered substantial mental or physical abuse as a result of a crime. The U visa allows victims to remain in the United States and assist law enforcement authorities in the investigation or prosecution of the criminal activity.

To qualify for a U visa, an immigrant must: (1) prove that she or he has suffered “substantial physical or mental abuse” as a result of one of the following forms of criminal activities: rape, torture, trafficking, incest, domestic violence, sexual assault, abusive sexual contact, prostitution, sexual exploitation, female genital mutilation, being held hostage, peonage, involuntary servitude, slave trade, kidnapping, abduction, unlawful criminal restraint, false imprisonment, blackmail, extortion, manslaughter, murder, felonious assault, witness tampering, obstruction of justice, perjury, attempted perjury, conspiracy, or solicitation to commit any of the above mentioned crimes; (2) show that the victim possesses information concerning criminal activity; and (3) provide certification from a federal, state or local law enforcement official, prosecutor or judge which states that the U-visa applicant is being, has been or is likely to be helpful to the investigation or prosecution of the criminal activity.  

Compromising Victim’s Safety

Most victims of crimes are afraid of retaliation by the perpetrators. One of the requirements for an immigrant victim to obtain the nonimmigrant visa to stay in the US is that the victim be able to show evidence of cooperation with a federal, state or local law enforcement office in the prosecution of the criminal activity.

For many victims of crime, taking the initiative to contact law enforcement officers is a very risky step.  There are those who feel that their safety is not guaranteed if they continue to reside in the US. Just like in the case of Julieta, many victims may feel that evading the perpetrator of the crime in order to avoid getting hurt is an easier route to take than to assist in the perpetrator’s prosecution.

Several outreach efforts are undertaken by non-profit organizations and government agencies to disseminate information about the existence of protection programs for victims of crimes. Unfortunately, not all government officials are aware of the protocol in the implementation of this U visa program. Thus, continuing training and information dissemination is needed.

Authority to Revoke Visa

Once a “U” visa is issued, the US Citizenship and Immigration Services may still have the authority to revoke the visa. One of the grounds for the revocation of the visa is that the victim refuses to continue cooperating with law enforcement authorities in the prosecution of the criminal activity. Similar to cases where employment authorizations are initially issued to those who cooperate in the prosecution of crimes, immigration benefits may also be revoked if the victim has not continued to be cooperative or helpful.

Among the 10,000 “U” visas issued, the number of Filipinos may not be significant. Fear of retaliation, and probable deportation, are major concerns that prevents them from applying for this type of visa.  The law indeed has a dual purpose to both protect the victim as well as to prosecute the criminal activity. For many, however, running away and thinking of their safety is more paramount than their continued presence in the US.

(Tancinco may be reached at law@tancinco.com or at (02)887 7177)