Month: August 2011

With the global economy slowing down, green card holders are not spared from the effects of  the crisis including “unemployment.” Negative news of a double dip recession in the United States causes restlessness and anxiety to the general public including the immigrants.

Angelita is an immigrant of the United States having been issued her green card five years ago. Her mother is a U.S. citizen who now resides in Manila. Angelita stayed in the U.S. for only three years and when her mother got sick, she decided to return to the Philippines. For the last two years, Angelita stayed in the U.S. for only a few weeks and lived in Manila longer.

During her last trip to the U.S., Angelita was subjected to a secondary inspection, an extensive interview by an immigration inspector. She was told that her immigrant visa or green card would be revoked if she continues to stay in the Philippines longer.

Initially, Angelita thought that it is no longer necessary to live and  work in the United States. She emailed me on August 14, 2011 stating in clear terms about her plans: I decided that I will give up my green card. I was informed before that I can convert my green card into tourist visa. How soon should I do this?

Four days later, Angelita sent a message:  I think I am changing my mind…Can I apply for a re-entry permit in the US Embassy in Manila instead? Or is it possible to apply for re-entry permit here in the U.S. and do the biometrics in Manila?

Angelita admitted that she has a well paying job in Manila and would not like to give it up. She claims that she is having a difficult time finding a job in the U.S. and she would be better off if she continues her employment in the Philippines and at the same time be with her mother. However, she was also told that it would be better to preserve her status as an immigrant in case circumstances change that will afford her again a better opportunity in the United States. What would be her best course of action?

Green Card v. Tourist Visa

Philippines is one of four countries that suffers from severe backlog in the application for immigrant visas.  The longest wait for someone who wishes to obtain a green card through family based petition is 24 years. This refers to the petition filed by a U.S. citizen on behalf of his siblings. Petitions under the other preference categories varies anywhere from 10 to 16 years in waiting time. Petitions by U.S. citizens on behalf of parents, spouse or minor children are not impacted by the backlog as they are considered immediate relatives and are processed quickly.

Considering the lengthy waiting time, once the green card arrives, most of those granted immigrant visas value the worth of being green card holders. They consider their status as the door to many opportunities and eventually leads them to becoming U.S. citizens.

On the other hand, a tourist visa shall temporarily allow the individual to visit the U.S. for a short period of time and return to the Philippines thereafter.

Ironically, there are green card holders who just want visitors visas instead of the immigrant visas. There are a number of visitors visa holders, on the other hand, who aspire to have green cards. Whatever their individual desires maybe depend on the personal circumstances of their case.

No Exchange of Visas

If the need for the green card is no longer existing, such as in the case where there is no real intention to live in the United States, an abandonment form may be signed at the U.S. Embassy or at the U.S. Department of Homeland Security. Surrendering the green card status by signing the abandonment form does not necessarily translate into an automatic grant of a visitor visa. There is no “exchange” of visa statuses.

The appropriate application for nonimmigrant visitor visa should be filed and the former green card holder will have to undergo an interview.  During the interview, the consular officer shall determine whether the applicant has sufficient ties in the Philippines and has no reason to overstay in the United States. The fact that the former green card holder seldom travels to the U.S. when he was an immigrant is a significant and positive factor in determining intention. However, note that financial ability to travel abroad shall also be taken into account and the applicant must be able to show evidence of sufficient funds or income required of a visitors visa holder. If temporary intent, sufficient ties and resources is proven then the former green card holder may be granted a visitors visa.

Walk on the Safe Side

It appears that Angelita is not sure of her decision to give up her green card. What if the economy improves in the near future? The best course of action is for Angelita to apply for the re-entry permit with the immigration service while she is in the United States. This may not be applied at the U.S. Embassy in Manila. As soon as the re-entry permit is issued, her intention is clearly established and will no longer risk an abandonment finding.

In these times of uncertainties, when we oftentimes hear negative news about the global economy, an individual’s informed decision is all that matters. Definitely, all-important factors are taken into account in making a decision.  If there is still doubt in the path that is going to be taken, it will be better to be on the safe side by preserving the green card.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)

Paul, a U.S. citizen, filed a petition for immigrant visa on behalf of Manuel, his only brother in the Philippines. After waiting for more than twenty years for a visa to become available, Manuel finally received his “checklist” to start his visa processing.

Unfortunately, Paul is unemployed. He was terminated from his employment three years ago and never found a job again. With the visa of Manuel about to be processed, he knows that he needed to submit an Affidavit of Support as part of the visa application. Since Paul has no current income, he asked his cousin Rose to be a co-sponsor. Rose and his husband are hesitant to be “co-sponsors” because they have heard of serious legal consequences of signing an affidavit of support. Besides they are not sure if Manuel, who is now a senior citizen, will rely on welfare upon his arrival in the U.S. because of the current state of the economy.

Paul tried his best to find employment but there are no available jobs that are open to him. In fact, he himself is reliant on public welfare, the Supplemental Security Income (SSI) for his support. After waiting for two decades, Paul is excited to be reunited with his brother but he is facing financial difficulties. What will happen to the application for immigrant visa of Manuel?

Mandatory Requirement

Generally, a family based immigrant visa will not be issued if there is no affidavit of support executed by the petitioner or a co-sponsor from the United States. Except for two exceptions or waivers, the affidavit of support is a mandatory requirement.

The petitioner, through an affidavit of support, must demonstrate that the sponsoring relative can support the immigrant at an annual income that is not less than 125% of the federal poverty line. To determine what income will suffice for various public benefits the government releases federal poverty guideline annually. This guideline is also used to determine the required income that an individual should have to enable him to petition a relative for an immigrant visa. The poverty guidelines may be found on U.S. Citizenship and Immigration Service Form I-864P.

In the case of Paul, he lives with his wife and he is considered to have two family members. If he is to include the person being petitioned, he is considered to have three family members. The 2011 guidelines indicate that for a family of three (3), the poverty income guideline is $18,530 and 125% of the poverty guideline is $23,162. Since Paul has no income, he has to find a co-sponsor who has sufficient income and who is willing to co-sponsor.

Why Non-petitioners Refuse to be Co-Sponsors

When economic times were better, finding a co-sponsor was not as difficult. These days more prospective co-sponsors are hesitant to execute affidavits of support. Among the reasons that prevents them from filing one is that this affidavits are not simply documents that attest to support the new immigrant. They are considered contracts that between the sponsor and the federal government for the benefit of the sponsored immigrant. Since they are considered contracts, if the sponsored immigrant becomes a public charge or receives federal, state or local means tested aid or welfare; the government could sue the sponsoring family member and the co-sponsor for reimbursement.

There is also a provision in the law that makes affidavits of support enforceable through lawsuits filed by the sponsored immigrant. This may sound strange, but there are cases filed by the sponsored immigrant against their petitioners. An example of this is in marriage cases where the sponsored immigrant separates and files divorce against the petitioner or vice versa. If the petitioner spouse refuses to provide support to the sponsored spouse, a case of enforcement of contract may be filed against the sponsor. This lawsuit is based petitioner’s obligation, which remains in full force and effect based on the signed affidavit of support.

Lifelong Commitment

 There are only five ways that a sponsor’s obligation of support may be terminated: (1) the sponsored immigrant becomes a naturalized citizen, (2) the sponsored immigrant works for forty Social Security quarters (or, in the case of a married immigrant, his or her spouse works for forty Social Security quarters while they are married), (3) the sponsored immigrant relinquishes permanent resident status and leaves the country, (4) the sponsored immigrant obtains new status in a removal proceeding, or (5) the sponsored immigrant dies. One would notice that all these five ways that will result in the termination of the obligation are circumstances beyond the control of the sponsor. What if the sponsored immigrant refuses to naturalize? What if the sponsored immigrant finds it difficult to find a job and remains unemployed? If none of these five ways of terminating obligation do not arise, the sponsor may face a lifelong commitment to the sponsored immigrant.

Sponsoring an immigrant to the come to the United States and supporting their application for visas with an Affidavit of support may appear to be a natural and routine part of the visa process. However, with the economic crisis and rising unemployment rates, there are a number of sponsors and potential co-sponsors who are skeptical about signing affidavits of support.  

Despite the realization of the legal consequences of a signed affidavit including the possibility of a lifelong commitment, we still encounter majority of Filipino families who exhibit strong determination to reunite with their relatives. Many are still pulling resources to put together Affidavits of Support for a successful immigrant visa processing. Indeed, family unity among Filipino immigrants remains a top priority and it is the family that enables them to sustain the many challenges of the times.  

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963)