Month: April 2012

Last week, an immigration judge made a side comment in court. She said that the reason she encounters multiple marriages and fraud among Filipinos in deportation cases is because there is no divorce in the Philippines. Of course, I just have to mention that majority of the Filipinos are still conservatives who believe in the sanctity of marriage. Instead of responding, she just smiled and looked at me with sarcasm. I understood that what she was trying to say was that it is not at all unusual for Filipino individuals to have multiple marriages.

An individual may indeed have multiple marriages but only one is considered a valid and legal marriage.  In the area of immigration, confusing and quite obscure situations are created.

Consider the following case: Anna married James in 2002. Two children were born of the relationship. On the fifth year of her marriage, James left for the United States on a nonimmigrant tourist visa. After six months in the United States, James overstayed and decided not to return to the Philippines. He filed a divorce from his wife Anna with the Superior Court in California. After it was granted, James married Carla who is a U.S. citizen. Carla is his long time girlfriend from high school who is also divorced from her first husband.

Anna eventually had a suitor who is also a foreign national who wants to marry her. However, the divorce decree obtained by James who is still a Filipino citizen is not valid in the Philippines. Anna, therefore, had to file for annulment in a Philippine court but her petition was denied. The California divorce decree not being recognized in the Philippines and her annulment petition having failed, Anna is still considered legally married to James.

In the meantime, James who is now a green card holder wants to come back to the Philippines and visit his children from Anna. He knows that he is still validly married to Anna under Philippine law. This is a clear case of bigamy under Philippine law. However, he has a valid and legal marriage to Carla under US law.

NATURALIZED US CITIZEN SPOUSES

In the case of James above, being a Filipino citizen, he is confronted with a case of bigamous marriage under Philippine law. Should James eventually become a US citizen, however, he can actually re-file a new divorce petition with Anna. In such a case, the new divorce judgment will be valid under Philippine law as divorces between Filipino nationals and foreign nationals can be valid under our Philippine Family Code.

DUAL CITIZENS

James as a green card holder and a Filipino citizen will be considered to have a bigamous marriage. If he, however, becomes a U.S. citizen and gets a divorce judgment, his foreign divorce can be valid in the Philippines. Now, what happens if he takes an oath back to becoming a Filipino citizen again under our Dual Citizenship law? Will his marriage to Anna remain valid and will he be in a bigamous marriage to Carla?

OTHER BIGAMOUS MARRIAGES

Even if there is no divorce law yet in the Philippines, there are legal ways to terminate a marriage. Annulment is one common option. Another option is when one of the spouses acquires a different citizenship and files for divorce in a foreign jurisdiction.

Notwithstanding the legal options, still multiple marriages may arise in different situations.

In a true-to-life case, Rissa had been having an affair with a married man named Paul.  Despite being already married, Paul still managed to marry Rissa as his second wife. Thereafter, Paul migrated to the United States with his first (and legal) spouse.  Rissa eventually was also able to obtain her tourist visa to visit the United States. In her visa application, she indicated she is married to Paul (even if she knew that this marriage is bigamous). She claimed that she was married in order to improve her chance of obtaining her visa. When Rissa arrived in the United States, she found out that Paul had already divorced his first wife. Thus, Paul and Rissa eventually remarried. However, in applying for her green card, Rissa only declared her second marriage to Paul and concealed the first marriage. Nevertheless, the misrepresentation was discovered and Rissa was put in removal/deportation proceedings.

‘MULTIPLE MARRIAGES’ MAY BE AVOIDED

Lack of divorce law in the Philippines has its adverse impact in the immigration area.  There being no divorce, it is a reality that many Filipinos do jump from one marital relationship to another. It is a reality that some relationships do fail. Are we not better off then giving validity to divorce for deserving parties?

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

Benny arrived in the United States with a tourist visa in 1995 with his wife and 2 minor children. Two months after his arrival, Benny applied for political asylum and obtained an employment authorization card. In 2000, Benny and his wife divorced. In the meantime, Benny was not aware of the status of his political asylum case. Unknown to him, his case application was denied and he was ordered deported by an immigration judge. He finally received this deportation order but ignored it.

Two years after his divorce, Benny married a U.S. citizen named Cathy. They have one child together. Cathy petitioned Benny for a green card. During his interview, Immigration and Customs Enforcement (ICE) agents arrived and arrested Benny. He was detained without bail because of his outstanding deportation order. Benny is the only breadwinner in the family. Cathy begged the ICE agent not to deport her husband and to consider the fact that Benny has a U. S. citizen spouse and minor child.  He was deported nonetheless.

The same fate happened to Helen who has been undocumented for many years.  She had a relationship with a U.S. citizen and had a child. The father of the child abandoned Helen and reported him to the U.S. Immigration and Customs Enforcement.  Helen’s child was only 8 months old when she was arrested. Helen begged, as her US citizen child would be without a mother if she were deported. Just like Benny, Helen was deported. Her child was forced to leave with her. Despite the fact that the child is a U.S. citizen, the immigration agent reasoned that the mother had the choice to leaving the child or taking the child with her. Naturally, the mother opted to take the child with her.

Mandated Reporting of Parents Being Deported

The U.S. Department of Homeland Security is mandated yearly by Congress to report the number of parents of U.S. citizens being deported. In a February 2009 report, more than 100,000 parents of US-born children were deported from the U.S. between 1998 and 2007. In a March 26, 2012 report, Department of Homeland Security records show that it deported in six months 46,486 individuals who have at least one U.S. citizen child.  Family unity no longer seems to be a major consideration of an individual’s deportability.

Petitions by U.S. Citizen Children

Children born in the United States become citizens at birth.  US immigration law only allows a U.S. citizen child to petition their parents after they turn 21 years of age. The mere fact that an undocumented immigrant has a U.S. citizen child does not in itself confer a benefit to the parent.

Extreme Hardship to Children

When a parent is put in deportation proceedings, the U.S. children may become qualifying relatives to support a relief from deportation.  This happens when the parent in proceedings is requesting the immigration judge for relief from being deported because of continuous physical presence of ten years or more in the United States. In this particular case, the children need not be 21 years old to support the parent’s defense in court.

In these cases, it is not enough that one has a U.S. citizen child. It must also be proven in court that the child will suffer extreme hardship if the parent is deported. Proving extreme hardship in court remains a challenge for most deportees because separation of family members in itself is not sufficient. There must be other factors that must be considered.

In the case of Helen above, her deportation proceedings happened before she had a   U.S. citizen child and so she was not able to have any relief available.

No Anchor Babies

Many conservatives in Congress oppose the giving of legal status to young undocumented children under the DREAM Act due to the fact that these children will eventually petition their undocumented parents as soon as they get status. To these conservative legislators, this is like giving amnesty to undocumented immigrant parents.

In certain cases also, presence of U.S. children alone is not enough to waive a fraud or misrepresentation case. Only presence of U.S. citizen spouses or parents will waive a fraud perpetrated by a deportee or an applicant for visa.

Merely having a US citizen child is no defense for undocumented parents from being deported. With recent Homeland Security figures showing that undocumented immigrants are being deported despite having US citizen children, one would question whether promoting family unity is still the central policy behind US immigration. Or, has the theme of promoting family unity been sacrificed in exchange for restrictive immigration policies?

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

Waiting for priority dates to become current takes longer for certain visa applicants.  The lengthy wait is worsened by “retrogression of priority dates.” This happens when the visa priority dates move backwards rather than moving forward.  It is not unusual to hear of cases where wrong decisions are made that jeopardize future visa issuances.  

No Good News

The Department of State’s Chief of Visa Control, Charles Oppenheim, recently issued a projected movement of the priority dates until July 2012. There is no good news for visa applicants in the family preference categories. Petitions by U.S. citizens for their adult children will move up by approximately 3 to 6 weeks per month. U.S. citizen petitions for brothers and sisters will move 3 to5 weeks per month. Petition by green card holders for their spouses and children will move forward by 2.5 months every month until July 2012.

In the employment-based categories, applicants for visas from the Philippines enjoy a priority date that is current for all preference categories except the third preference. The third preference category includes both skilled and unskilled workers. Nurses and physical therapists, among others, fall under this third preference category. Mr. Oppenheimer projected that there will be an approximate movement of 3-5 weeks every month until July 2012 for this category. Still a very slow process considering that they are just issuing visas for petitions filed in 2006 for this category.

The proposed bill in the House that will increase the quota for family-based petition was not taken in the Senate and, hence, no law has yet been enacted on this matter. When the House approved the bill sometime in November 2011, most family-based petitioners were excited about the possibility of having the waiting period decreased. No luck. In an election year, it is doubtful whether an immigration bill will be passed into law; more so with a bill that will increase family based visa quota.

Do’s and Don’ts

For those applicants who must stay single to obtain a visa (referring to permanent resident parents petitioning their adult children), marriage is a critical issue. The visa application for those who marry while their petition is still pending is automatically terminated. On the other hand if the petitioner is a U.S. citizen parent petitioning an unmarried adult child, marriage of the child will result in downgrading of the petition resulting in longer wait times. For these applicants note the following: (1) DO understand the consequence of marrying on your visa petition; (2) DO consider staying single if you really want to pursue your visa petition; (3) DO NOT engage in ‘secret marriage’, there is no such thing and it will still have the effect of a marriage; (4) DO NOT misrepresent you are single to the consul if you are already married. They have a way of determining whether you are saying the truth, as the consequence will catch up with you when you least expect it. Deportation is a possibility if immigration authorities discover your lie later on.

For children who have already aged out (turned 21 years old) and are left behind while their parents and siblings are in the United States take note of the following: (1) DO spend productive time while waiting by using it to finish your education or get some useful trade skills or get a job; (2) DO NOT simply rely on remittances from your parents and explore ways to be productive yourself; (3) DO NOT take illegal drugs because this will have a consequence on you future visa application and will bar your from receiving your visa; (4) DO NOT be tempted by others to engage in fraudulent visa applications and most especially (5) DO NOT change your name or use an assumed name to try and get a  temporary visa.

Petition by U.S. citizens on behalf of their siblings suffer the longest backlogs. For applicants in this category, take note of the following: (1) DO NOT put your hopes too high; (2) DO accept that it will take approximately two decades for your visas to become current, and (3) DO spend productive time while waiting as you may or may no longer be interested in migrating after a 2 decade wait.

Those affected by the retrogression issue are mostly the nurses. The movement of the backlog is only 3 to 5 weeks each month and it will take many years before this category becomes current again. For newly graduate nurses: (1) DO accept other opportunities from other countries; (2) DO find U.S. petitioners if you can and have them petition you so you have a priority date and you will have a visa petition to look forward to becoming current; (3) DO get an advance degree so you can qualify for a higher visa category and you will not have as long a wait for a visa priority date to become current. Getting a U.S. employer to petition for a nurse may be difficult these days. But the economy is getting better, so who knows?

Sometimes, no matter how bad the situation is, we cannot continue to dwell on the negatives. The U.S. immigration system is certainly far from ideal. Backlogs will be there and may only get worse. But the best advice is not to allow the “waiting” game of visa petitions take control of one’s future. There are other legal options and precautions to take. If time is spent productively, then hopefully time will pass quickly.

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