Month: July 2012

With an election looming, President Obama touts his policy of encouraging “in sourcing” and discouraging “outsourcing” of services and manufacture of goods. In an effort to accelerate job creation, the Obama administration reiterates its full support to entrepreneurs. Policies and regulations relating to applications for immigrant and nonimmigrant investor visas have been revisited since last year to encourage investment.

Entrepreneurs’ Visas

There are various was for a foreign investor to obtain a U.S. visa. The most known type of visa is the “one million dollar” investment visa that will give the investor the status of a green card holder.

There is also the “exceptional ability visa” under the second employment-based category.  This type of visa focuses more on the “exceptional abilities and qualification” of the individual entrepreneur and how it benefits the U.S. economy instead of the amount of investment.

On the nonimmigrant visas or temporary visas, an entrepreneur may apply for the E1 or E2 investors’ visas. The E1 visa is the treaty trader visa where substantial trade of goods or services is conducted by the investor between the United States and the investors’ country of nationality. On the other hand, the E2 investor visa is issued to an individual entrepreneur who invests “substantially” in a U.S. enterprise.

How Much Investment

For the employment-based fifth preference visa or the immigrant investor visa, the amount of investment may either be one million dollars or five hundred thousand dollars depending on the location of the investment enterprise. For designated regional centers, the investor must be able to show at least half a million dollars for the immigrant visa to be approvable. In addition to this amount of investment, the immigrant investor must be able to show that the investment enterprise will create at least 10 jobs for U.S. citizens or permanent residents.

In regards to the nonimmigrant E2 investors’ visa, no specific amount is required. What the regulations require is for the investor to show a “substantial” amount of investment as distinguished from a relatively small amount of capital. To determine whether the investment is substantial, a proportionality test is used. This test considers the proportion between the amount of the funds actually invested and the value of the business.  The investment that equals or exceeds the value of the business usually considered substantial.

For E2 investors, even if no set amount is required, it is important to note that investment in a marginal enterprise is insufficient for the issuance of an investor’s visa. A marginal enterprise is where the investment does not have the present or future capacity to generate more than enough income to provide a minimal living income for the investor and his family.

The Exceptional Ability Entrepreneur

Another immigrant visa category that may be considered by entrepreneurs is the EB2 or the employment-based second preference. Under this category, individuals with exceptional ability in the field of science, arts or business may qualify for this visa. The expertise of the entrepreneur must substantially benefit the U.S. economy aside from showing that the skill is significantly above what is ordinarily encountered in the sciences, arts or business.

There are two alternative ways to obtain this EB2 visa. One is through a petition by a U.S. employer after the Department of Labor approves an application for labor certification. The other is through a self-petition if the entrepreneur meets the “national interest waiver” standards. If the entrepreneur’s business will create jobs for U.S. workers there is a strong probability that an immigrant visa will be granted.

Family Members’ Visas

Spouses and minor children of the immigrant or nonimmigrant visa entrepreneurs are also entitled to visas. They may join the principal investor in the United States. For those with temporary investors visas, the spouses can be granted employment authorization documents while the children are allowed to study in U.S. schools.

Open for Business

With the need for the U.S. to compete in the global economy and the support it gives to enterprises that stimulate job growth, Filipinos who are interested in diversifying their investments to the U.S. has various entrepreneur visa options. Entering the United States to develop and operate an enterprise is a serious commitment, as it will require placing substantial capital at risk with the hope of generating profitable returns. With the severe backlog in employment-based immigrant visas, and professional working visas always reaching its annual maximum cap, investing in an enterprise may be an available alternative.

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

Joshua was petitioned by his U.S. citizen spouse, Jessica, in 1994. After ten years of marriage, Joshua decided to file a divorce against Jessica. There were three children born from the relationship and all of them are minors. The court ordered that Joshua pay child support in the amount of $1,500 per month.

For one year, Joshua paid his child support regularly. However, Joshua was terminated from his employment and found it difficult to pay for his child support obligations. He filed for modification of his child support payments in court. The court reduced his monthly payment down to half but was ordered to make arrangements to pay off child support arrearages in the amount of $12,000. Instead of complying with the modified payment order and paying his arrearages, Joshua instead decided to ignore his obligations. In 2012, his unpaid child support increased to $25,000.

Meanwhile, depressed and unemployed, Joshua found solace in engaging in social media, where he found his long time girlfriend through Facebook. They started communicating and thereafter planned to live together and marry. Joshua’s girlfriend is in the Philippines and Joshua has not seen her in person for over 20 years. He decided to travel to the Philippines to meet her and then file a fiancé petition for her.

Joshua applied for a U.S. passport but was denied issuance by the State Department. While he was issued a U.S. passport in the past, he was told a renewal of his U.S. passport was problematic because he owes more than $25,000 in child support payments. Desperate to depart for the Philippines, Joshua, upon advice of his friends, applied for dual citizenship and was issued a Philippine passport. He traveled back to the Philippines and stayed with his long time sweetheart for more than three months. When he was about to return to the United States, he found himself with only a Philippine passport. He was told that a mere Philippine passport without a U.S. visa was an insufficient travel document to go back to the States. Joshua applied again for a U.S. passport. Will he be issued one by the State Department despite his child support arrearages?

Passport Denials

The U.S. Department of State has a Passport Denial Program, which is part of the Federal Offset Program. This program is designed to help states enforce delinquent child support obligations. Parents certified by a state as having arrearages exceeding $2,500 are submitted by the Federal Office of Child Support Enforcement (OCSE) to the Department of State, which denies them U.S. passports upon application or the use of a passport service.

This program has been effective since October 1, 2006 as a penalty for deadbeats who owe court-ordered child support. It also serves as an incentive for passport applicants who wish to travel to first settle their child support arrearages before taking a trip outside the United States.

Reporting Child Support Arrearages

The restriction on the issuance of a passport applies only if there is previous court intervention in the child support matter and individuals representing the child are utilizing state support collections services. If there is no court order of child support, enforcement through this program is not available.

Each of the fifty states maintain a statewide child support enforcement agency for the purpose of obtaining, collecting, and enforcing child support orders. In the State of California, the agency is called the California Department of Child Support Service (CSS). The court order of arrears is reported by this agency to the Health and Human Services who then forwards the name of the individual to the U.S. Secretary of State. The Department of State Passport Services will then refuse issuance of a passport unless in 90 days, the applicant settles his child support arrearages.

Applying for Naturalization

In the context of a lawful permanent resident who is applying for U.S. citizenship, the immigration examiner will also inquire into the child support payment of the applicant who is a non-custodial parent. Unlike in the application for U.S. passport where a child support order from the court is a requirement in denying a passport’s issuance, the examiner in a naturalization application may deny the application outright if it is discovered that the applicant has child support arrearages. Failure to pay child support reflects negatively on the applicant’s moral character, a basis for the denial of the citizenship application.

Limited Passport

Applying for dual citizenship and obtaining the Philippine passport allowed Joshua’s travel back to the Philippines. His return to the U.S., even as a U.S. citizen, however, required possession of a valid travel document to be allowed inside the United States. This, he did not have. So what is Joshua to do? Under the regulations restricting issuance of passports to the likes of Joshua, an exception is provided: Joshua could secure a limited passport only for direct return to the United States. He could not use this passport for any other purpose.

The regulations that restrict issuance of passports to deadbeats withstood constitutional challenges because there is governmental interest in ensuring that those who do not pay child support obligations remain within the jurisdictional authority of the United States. The exception allowing Joshua a limited passport back to the U.S. ensures that he would be within the jurisdiction of the courts to face, own up to, and hopefully address his child support obligations.

(Tancinco may be reached at law@tancinco.com or at 887 71 77 or 721 1963)

Belinda met Thomas, a U.S. citizen, while she was a foreign student at a prestigious university in California.  When Belinda graduated, she returned to Manila to work for their family business. Thereafter, Thomas filed a petition for fiancé visa on behalf of Belinda so they can be together again. In less than a year, Belinda obtained her fiancé visa from the consular office of the U.S. Embassy in Manila. She flew to Los Angeles, California and they got married in a civil ceremony.

Belinda filed an application for adjustment of status with the U.S. Citizenship and Immigration services to obtain her immigrant visa. A few weeks after the filing of her adjustment of status, Belinda and Thomas separated. Belinda discovered that Thomas was seeing another woman while they were married. A petition for divorce was filed and the court issued a final decree of adoption. Her application for adjustment of status was denied and she was put in removal/deportation proceedings.

While her deportation proceedings were pending, Belinda married John, also a U.S. citizen. The latter filed a petition for Belinda and this petition was approved. Despite the approval of the petition, the immigration court nevertheless ordered her deported on the ground that a person who entered on a fiancé visa may only obtain an immigrant visa through the fiancé visa petitioner. Belinda, having entered as a fiancé may only get her green card through Thomas. Belinda filed an appeal on the decision of the immigration judge with the Board of Immigration Appeals.  The appeal is still pending and in the meantime, Belinda remains married to John and they now have two U.S. citizen children. Will the decision of the immigration court be reversed or will Belinda be ordered deported?

Marriage to the Petitioner is Critical

The immigration regulations pertaining to fiancé visa holders are clear. The fiancé visa holder can only obtain immigrant visa or green card by virtue of the relationship to the fiancé visa petitioner and a marriage within 90 days of admission. If no marriage is entered into between the petitioner and the fiancé visa holder within 90 days of admission, there is no available option except to leave the United States to avoid becoming an undocumented immigrant. Marrying another U.S. citizen will not be a solution for the fiancé visa holder who failed to marry the initial petitioner. This is the unfortunate consequence notwithstanding the fact that the subsequent marriage to a U.S. citizen is valid.

Divorced from the Petitioner

If marriage to the fiancé visa petitioner is a critical requirement, what happens if marriage occurred but the petitioner divorces her petitioned spouse before the latter obtains the green card? The Board of Immigration Appeals ruled in Matter of Sesay 25 I&N Dec 431 (BIA 2011), that fiancé visa holder will still have the opportunity to get the green card despite the divorce if she can prove that she entered into a good faith marriage within 90 days of admission to the United States. Based on this decision, the spouse who entered with a fiancé visa has the burden of proving that the marriage with the petitioner was real and was not a fraudulent marriage. This Sesay ruling opened the door to those who were abandoned or divorced by their petitioners.

Proving Good Faith Marriage

A key factor in proving good faith marriage is the intention of the parties to the marriage. There must be the intent to establish a life together as a married couple. The usual evidence submitted to prove good faith marriage includes: (1) documentation showing joint ownership o property; (2) lease showing joint tenancy of a common residence; (3) documentation showing a commingling of financial resources; (4) birth certificates of children born to the marriage; (5) affidavits of third parties having knowledge of the bona fides of the marital relationship.

For a fiancé visa holder who had a short-term marriage, submission of joint documents to prove the bona fide marriage is a challenge. Sometimes, the couple had a short-term relationship in the United States and a hostile petitioner who may withhold proof of relationship. What can be done in these short-term marital relationships is to obtain as many affidavits from close friends or individuals who knew about the relationship. These affidavits must contain personal account and detailed statements about the spouses prior to the divorce.

In addition to the affidavits, evidence of the relationship prior to the marriage may be submitted. These documents may include proof of money remittances from the U.S. citizen petitioner to the spouse, pictures and travel itineraries to show the visits made to the spouse during the period of courtship.

Documenting the Relationship

Technology may have changed the manner of proving good faith relationship. With communication through text messages, Skype, Facebook and other forms of electronic communication, documenting the relationship may be challenging. However, if there is a way to print messages, it will be helpful to keep some of these messages to substantiate proof of a valid marriage.

In the case of Belinda, she will prevail on her appeal by invoking the ruling in the Matter of Sesay case.  Once her case is remanded back to the immigration court, she must be prepared to submit proof of her bonafide marriage with Thomas to avoid being deported.

To avoid complicating future applications for immigrant visa, the fiancé of a U.S. citizen must be aware of the importance of documenting every stage of the relationship. More important than documenting the relationship is the practicality of spending enough time to get to know the petitioner before making a critical decision to marry abroad.

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