Month: May 2013

The current immigration system is broken. Family reunification is not realized for certain visa applicants and many families remain separated for many years. The lengthy visa processing of petitions for adult children raises serious concern when petitioner’s health deteriorates. Let’s examine the case of “Carla” who sent me an email about her mother’s present situation. She writes:

“My mom is a US citizen and petitioned me and my brother to come to the US. Our immigration papers already came in and we have paid the affidavit of support fees and visa processing fees. Now they want us to fill out a DS-230 form. I have concerns regarding part 2 of the form, about the petitioner’s name and current residence.”

“My mom has had to stay in the Philippines for a while now, because of a series of strokes. She cannot travel on long flights to come back to the US, and she is on tube feeding and very fragile. She is also using adult diapers and we have to change her every now and then. She’s in physical therapy and home care. How do we fill out part 2, and will this have an effect on our visas?”

One of the many forms that is being accomplished and that is referred to in this letter is the biographic data form. The information that is being requested is the exact address of where the petitioner currently resides. If the mother will no longer be able to travel to the United States will the children still be able to obtain their immigrant visas?

Petitioner Must Live in the U.S.

An important requirement for the immigrant visa to be issued is that the petitioner should have a US “domicile”. The term domicile is defined under the relevant statute as the place where the sponsor has a residence in the United States with the “intention” to maintain that residence for the foreseeable future. A U.S. citizen may be residing in the Philippines while waiting for the petition of the children to be processed without giving up the U.S. domicile. The residence must be temporary in nature only and that the principal residence should still be in the United States.

How does one prove that the domicile is in the United States despite her residence in the Philippines? To be considered as having a principal US residence, the petitioner must demonstrate that the stay in the Philippines is only temporary in nature. This can be proven if the petitioner can show that he maintains ties to the US, such as by voting, paying income taxes, maintaining property or bank account.

An extended stay in the Philippines by a U.S. citizen petitioner may still be considered a temporary stay especially for students, teachers, contract workers whose jobs are only temporary in nature. Aside from proving the temporary nature of the activity in the Philippines, one must also demonstrate the “intent” to return to the United States.

The typical scenario for one whose petitioner is residing in the Philippines is for the petitioner to travel back to the United States when the visa petition’s priority date becomes current. It is not necessary that the petitioner return to the United States ahead of the petitioned relative. The petitioner may travel at the same time with the relative and show proof that he intends to establish the residence as of the date the petitioned relative enters the United States.

While the petitioner may travel ahead of the petitioned relative, the reverse scenario is impermissible. The petitioned relative may not travel to the United States ahead of the petitioner.

Visa Denial
 
Carla’s petition by her mother falls under the first preference family based category, which is the ‘petition by a U.S. citizen on behalf of unmarried adult children’. For Filipino nationals, the petitions being processed under this category are those petitions that were filed in 1999. In reality, with the present immigration system, there is approximately 15 to 16 years of waiting time before an adult unmarried child of United States citizen may be issued the visa. As explained above, Carla’s mother must have the intent to re-establish the U.S. domicile and must travel back to the United States with Carla for the immigrant visa to be issued.

Considering the length of time it took for the priority date of the petition to become current Carla’s mother suffered a stroke and remained seriously ill. She obviously could not travel.  Under these circumstances, she can no longer re-establish the U.S. domicile. The consular officer at the U.S. Embassy will not issue the immigrant visas of Carla and his brother for failure to prove petitioner’s U.S. domicile.

Many Options, But Only One Mom

For those who are beneficiaries of petitions, the anticipation of immigrating to join the U.S. citizen relatives may be a lifetime dream.  When the petitioner is suffering from a serious illness, this may delay the fulfillment of the dream. There are those who I have witnessed, who were misguided and forced their parents to return the United States to meet the U.S. domicile requirement risking the health of their parents. For Carla, I suggest that she answers truthfully the application for visa and indicate that the mother is a resident of the Philippines. Her mother needs the care and love during these critical times. It will not all be worth it to risk the life of a mother who had sacrificed much to be able to support and raise her children. Giving up on the family immigrant visa petition does not mean abandoning the American Dream. There are many legal ways of immigrating other than through family based petition. But, we only have one mom, one lifetime opportunity to love and cherish her, while we can. Happy Mother’s Day!

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)
 

“No human is illegal”. This has been the battle cry of advocates for undocumented immigrants for years. Are we now seeing a shift in the way the country describes unauthorized individuals living in the United States enough for us to  expect a greater understanding of their plight and hope for a marked change in legislative policy?

Ruben entered the United States in 2002 as a B2 visa holder. He used the B2 visa many times before his last entry in 2002. After six months of authorized stay, Ruben married Jessica, a U.S. citizen.  Jessica filed a petition for Ruben but after two months, Jessica withdrew the petition. Ruben fell out of status and decided to stay in the United States.  From 2003 to the present, Ruben held only one job, as a caregiver for an elderly patient. His employer wants to petition him but his employer was told that Ruben will not be qualified to adjust his status to an immigrant visa holder since he is not 245i eligible. Ruben pays taxes every year and has no criminal record. He heard about the immigration reform that is being proposed, he asked if he is qualified to apply for “legalization”.  

Ruben is just one of the many individuals who are looking forward to a legalization of their status. He is but one of the many, many undocumented individuals who for so long have been pejoratively referred to as “illegals”.

In the coming months, the U.S. Congress is expected to enact a Comprehensive Immigration Reform law. Aside from fixing the current broken immigration system, This law is expected to provide a pathway to citizenship for some 11 million undocumented immigrants. According to a study conducted by Pew Hispanic Center and the Department of Homeland Security, the 11 million undocumented immigrants remained steady since 2010, 3/5 of which are made up of Mexican nationals, while the rest are from different countries mostly from Central America and the Philippines.

The U.S. Bureau of Census counted 2.5 million Filipinos residing in the United States, the third largest Asian group with the highest number of naturalized U.S. citizens and the fourth largest in green card applicants. Considering the nature of their status, the number of undocumented Filipinos is not specifically determined. Despite it being an “unknown” number, the profiles of Filipinos who were born in the Philippines and are without status in the United States are identifiable. Let us describe a few of these profiles.

Overstayers, DREAMERs, Victims of Circumstance

Unlike nationals of the border countries, most of the Filipinos who immigrate in the US are holders of valid non-immigration visas. Instead of departing before their authorized stay expires, the “overstayers” decide to violate their status and reside without lawful documents.

Some Filipino immigrants are petitioned by U.S. citizen spouses or fiancés and enter on valid visas who, after a short period of living together, contend with problems in the relationship affecting their immigration status. The case of Maria, for instance, is a compelling example. Maria was petitioned as a fiancé; she has no other relative in the United States. Her husband became really abusive and she withdrew the petition for Maria. As a result, Maria fell out of status. Without valid legal documents, Maria could not find a decent job. While eligible for a visa as a victim of domestic violence, she was unable to provide sufficient documentation to prove her case. Maria and those similarly situated are hoping for an opportunity to legalize.

Aside from victims of domestic violence, there are also who lost their status because of the abuses of their recruiters or agencies.

Of course, we also know of the young undocumented immigrants who were brought to the United States by their parents who remain out of status. The temporary deferred action for childhood arrivals or the DACA has limited applicability and does not cover all young undocumented immigrants. The DREAM Act is more comprehensive in scope and should be included in any proposed immigration reform.

Broken System

For most individuals like Ruben, Maria and the DREAMERs, their plight as undocumented immigrants was a result of a broken immigration system. The current immigration law does not provide an opportunity for them to obtain legal status even if they possess the qualifications to become productive citizens. Hopefully, the immigration reform bill will address all these issues and look at the immigrants who lost their status from a perspective that is humane, just, sensible and compassionate.

It is easy to demagogue the undocumented immigrant, particularly in a slow economy. It is easy to scapegoat him as a source of the country’s ills, the cause of stark wages, the reason for rising unemployment. This, of course is not true. It is belied by statistics; it is belied by history, and decades upon decades of the immigrant experience in the United States.

Most of the undocumented immigrants we profiled are highly educated, easily assimilated, well motivated, tax-paying individuals, typically the head of their families or are committed to support family members in their homeland. Since they bring with them their skills and experience, the hope of most of them is to be able to land jobs that match their skills. Unfortunately, because they lack the legal documents to lawfully work, they end up taking odd jobs that drastically lessen their earning capacity and limit their potential. Whatever jobs they take, however, most of these undocumented immigrants are hardworking individuals who take pride in and give value to their work.

The undocumented immigrant is not “illegal”. He and countless others contribute to this nation’s growth, he is critical to the overall economy and is woven in the fabric of this country’s very soul.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)