Month: September 2013

Almost all applicants for immigrant visas will require their petitioners to execute a document called Affidavit of Support before they are granted visas. The purpose of the Affidavit of Support is to ensure that the person being petitioned will not be a public charge or reliant on public funds for sustenance.  An affidavit of support sets forth financial and other facts and contains certain promises that the affiant makes voluntarily and under oath. It is a contractual obligation of the sponsor and as such, is enforceable.

Jonathan is a naturalized U.S. citizen who spent two weeks of vacation in the Philippines. In one of the gatherings he attended, he saw Yoly, his high school sweetheart, with whom he lost touch. After many years, they found each other again and decided to marry.

Last year, Jonathan filed a petition for immigrant visa for Yoly. He also executed an Affidavit of Support as part of the immigration visa documents. Yoly was issued an immigrant visa and was able to travel to the United States.  Six months after living together, Yoly left the conjugal home after discovering that Jonathan was having an affair with his co-worker. She then filed for divorce and sought spousal support. The divorce judgment was issued but the order of spousal support granted was only in the minimal amount of $300.  The court required Yoly to show proof that she is taking sufficient effort to gain employment as a condition for continued payment of spousal support.

Since the minimum amount of $300 is not enough for Yoly, she filed a federal lawsuit for enforcement of the Affidavit of Support which Jonathan had executed as part of her immigrant visa petition.  If the court grants Yoly’s request, she will be receiving a monthly support of at least $1300. Will Yoly prevail in her lawsuit for enforcement of the Affidavit of Support?

Enforceable Contracts

The Affidavit of Support is an enforceable contract. By signing this document, the petitioner agreed to provide support to maintain the sponsored alien at an annual income not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.

Generally, a spouse seeking financial support based on the Affidavit of Support is awarded an amount equivalent to one household. This may amount to approximately $13,500 per year. This is not an absolute figure and the court may modify the exact amount to be paid by the sponsor.

The affidavit may only be enforced while it is in effect. The petitioner is no longer liable in the following cases: (1) when the sponsored spouse becomes a naturalized U.S. citizen; (2) when the sponsored spouse earned enough income in 40 qualifying quarters under the social security law; (3) when either the sponsor or the sponsored spouse dies; or (4) when the sponsored spouse abandons her lawful permanent resident status and departs the United States.

Divorce or separation from the sponsored spouse does not terminate enforceability of the affidavit of support.

The civil case for enforcement is filed with the appropriate district court and the nature of the case may be a breach of contract or a specific performance of the contract.

No Need to Show Mitigation

The case of Jonathan and Yoly is similar to the case decided by the federal court in the case of  Liu v. Mund (7th Circuit, July 12, 2012).  The U.S. citizen spouse in that case claims that the sponsored spouse is obligated to mitigate damages by showing proof that she is trying to seek employment. The basis of his legal position is the established rule in contract where the other party bringing the action must try to reduce the amount of damages incurred.

The court did not agree with the sponsoring party’s position for two reasons. First. The purpose of the Affidavit of Support is to prevent the sponsored spouse from becoming a public charge or relying on benefits that are funded by taxpayers and donors of organizations that provide charity for the poor. The sponsor should not be allowed to bail out on his obligation just because the sponsored spouse is not looking for employment. If he is allowed to prevail on this argument, then the burden of support will fall on the taxpayers and charitable institutions. Second. Sponsoring an individual for a green card is an important undertaking with clearly the corresponding financial responsibility. According to the court, the prospective sponsor must be more cautious about sponsoring immigrants.

Being More Prudent

There are not many disgruntled ex-spouses who had opted for enforcement of Affidavits of Support. Most of those who are separated find employment that may be above the poverty guideline thus relieving the sponsoring ex-spouse of financial obligation. Other ex-spouses may have filed for naturalization to U.S. citizenship, thus terminating the obligation of the sponsoring ex-spouse under the Affidavit of Support.  However, since the Affidavit of Support may be effective even after divorce, it is important that the sponsoring individual be more prudent in signing Affidavits of Support or even in petitioning individuals. It is still one’s choice to be a sponsor. Before signing such affidavit, however, it is important that one understands that this is a real undertaking, enforceable under the law, and that the corresponding financial responsibility may very well outlive the relationship between the petitioner and the person for whose benefit the Affidavit of Support was made.

(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)

The U.S. Citizenship and Immigration Services and the U.S. Department of State released policy guidance on how to deal with petitions by same sex partners. These were released a few weeks after the U.S. Supreme Court ruling in U.S. v. Windsor, recognizing same sex marriages.

There are no distinct or unusual provisions that are specially drafted for same sex partnerships when it comes to family based visa petitions. Whatever rule applies to opposite sex partners will likewise apply to the same sex partners.  

Considering that this is a recent development in the petitioning process, there are still several issues that need resolution. Of particular concern for most same sex petitioners is the presence of prior undissolved marriage of a partner who is a beneficiary or the applicant for a fiancé visa. What if the same sex couple has been in a long time relationship but one party is still validly married with children?  

In the television series, My Husband’s Lover, the characters Eric and Vincent have a romantic relationship despite the fact that Vincent is validly married. What if Eric is really a U.S. citizen and wants to take Vincent to the United States to live as a same sex couple? Will Vincent be able to get the immigrant visa? How will the marriage of Vincent and Lally be dissolved in the Philippines where divorce is not recognized?

Filing Fiance Visa Petition

Those who recently immigrated to the United States and are lawful permanent residents or green card holders may not file fiancé visas for their same sex partners. Only U.S. citizens may file for fiancé visas.

In cases where a U.S. citizen decide to file a fiancé visa for a partner, the following documents are required: proof of U.S. citizenship for petitioner; proof that U.S. citizen and foreign national has met in person within the last two years; original statements from both petitioner and beneficiary explaining intent to marry within 90 days of entry into the U.S: evidence of relationship (bona fides) and evidence that any prior marriage was legally terminated for both parties.

Evidence of relationship may not be difficult to prove especially in long-term relationships. For those who have prior marriages, it is important for them to find ways to dissolve the marriage. There is no divorce law in the Philippines but this does not mean that no marriages are dissolved. The Philippine courts accept petitions for annulment of marriages, if granted, will have the effect of a terminated marriage. Under Article 36 of the Philippines’ Family Code, a marriage may be annulled due to lack of parental consent, force or intimidation, psychological incapacity, fraud and physical incapacity to enter the married state.

In the example given, Vincent may file for an annulment and when and if it is granted, then, Eric, his lover, may file a fiancé visa for him.

Only for the Affluent?

Unlike in the State of California, where there is a no fault divorce, in Philippine jurisdictions, proof of the existence of the grounds of annulment such as fraud, psychological and physical incapacity must be submitted during the hearing. If the other party decides to contest the ground for annulment or there is lack of convincing evidence, the annulment will not be issued.

For those with visitors visa or other nonimmigrant visas, they may have an alternative to dissolve their marriages, they may file for dissolution of marriage in a State where the courts accept jurisdiction to dissolve a foreign marriage.  For example, Vincent will use his visitors visa (assuming he has one) to enter the United States and proceed to Las Vegas to establish few weeks of residency and then file for a Nevada divorce.

Filing for annulment in Philippine courts or filing for divorce abroad may be options that may be taken to dissolve a marriage so that the U.S. citizen fiancé may file a petition for his partner who is married. But these options are not available generally to all who wants to file for dissolution of their marriages. In the first place, it is expensive to obtain annulment in the Philippines. Secondly, very limited number of those who wants to file for divorce have visitors visa to enable them to travel to the United States. Considering these realities, filing a fiancé visa petition either in the same sex or opposite sex relationship is difficult if the person being petitioned has a prior marriage and still resides in the Philippines.

The Philippine constitution protects the sanctity of family life. For this reason, it may be legally impossible, at this time, in the Philippines to have a divorce law much more change the definition of marriage.  And for same sex partners who want to petition their partners with prior marriages, dealing with the realities and overcoming the barriers to petitioning will be a considerable challenge.

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

After the September 11 tragedy, student visa holders have been under the watchful eye of federal agencies. The Department of Homeland Security (DHS) is diligently enforcing its own rules against student visa violators and schools who abuse the immigration process on foreign students.

While China has the most number of foreign students actively in U.S. schools, there are also quite a good number of Filipino students. Just like any other nonimmigrant, it is not unusual to encounter cases of Filipino student visa holders who were victims of unscrupulous school owners to the detriment of their lawful immigration status. 

The Immigration Customs and Enforcement (ICE) is the DHS agency that administers the student visa program. Last week, ICE published a report that an owner of a school in New Jersey, PC Tech Learning, admitted to having committed widespread foreign student visa fraud.  The owner, Somalingam , conspired to obtain student visas for foreign students even if they were not eligible for the visas. He also did not report to DHS for termination a student’s visa status despite the failure by its students to maintain their visa status. The school owner confessed to “conspiring to commit visa fraud and conspiring to conceal and harbor illegal aliens for financial gains which carry a penalty of 10 to 15 years of imprisonment”.

While problem school owners may be subjected to investigation and face subsequent criminal liabilities, what about the students who encounter visa problems due to the fact that they unknowingly enroll with the problem school such PC Tech Learning? Will they be removed from the United States? Are there other options for the student victims of these schools?

Maintaining Student Visa Status

Considering that foreign students are strictly monitored, any holder of a student visa (F1 or M) must avoid violating visa status.  The purpose of receiving a student visa is to pursue an education in the United States. If the student is not enrolled and is in the United States on a student visa, the ICE and the Customs Border Protection (CBP) will be able to determine this immigration violation through the Student and Exchange Visitor Information System or SEVIS. Under this system, schools are required to provide regular electronic reports to ICE on each student. SEVIS houses all the information about students and this information is accessible to ICE, the U.S. Citizenship and Immigration Services, U.S. Embassies and CBP at all ports of entry. Hence, if the student is not enrolled in school or fails to pursue their studies while on student visa all these agencies are notified through the SEVIS.  Hence, a student visa holder who is travelling back to the United States after a brief summer trip to Manila may be held at the port of entry if there is a flag on the SEVIS record. Usually a red flag is generated if there is a termination of studies or any violation of visa status.

Abuse by School Owner

One must be vigilant in choosing an educational institution to enroll in.  The owner of the PC Tech Learning abused the visa system by not updating SEVIS despite the termination of studies of its enrollees.  As long as the tuition was paid, he did not report the termination of its student visa status, which is a clear violation of the SEVIS rules.

Other common violations of schools include allowing the student to engage in employment that does not comply with the regulations. Problems may also arise with schools if they allow the foreign student to take a high number of classes online. There is a limit on the number of online classes that a student visa holder may take. No more than one online class not exceeding three units can be taken during each academic term. Failure to take a full course load without the permission of the Designated School Official (DSO) is also a common violation of student status. There are only enumerated grounds in the law that exempts one from taking a full course load every semester.

Limited Employment Authorization

A student visa holder is expected to have the financial ability to pay his tuition and daily sustenance. Proof of financial ability through an Affidavit of Support is usually submitted to the consular officer before the student visa is issued.  When the student arrives in the United States, he is expected to take on a full course load and not engage in unauthorized employment.  The employment may be authorized only in certain circumstances. The student may engage in Curricular Practical Training (CPT) and Optional Practical Training (OPT). The CPT employment will be authorized only if the student has been enrolled in a program for one full academic year or the employment is a requirement of the graduate program. A student may be granted OPT for one year usually post graduation. 

A student visa holder who has a valid student visa stamped on his passport is not a guaranteed a smooth entry at the port of entry if there are violations of the visa status.  The foreign student must understand that there is always the option for reinstatement of student visa if the violation occurred within the last five months. As soon as the student visa is reinstated, the student will be back in status. If in the event that the student no longer wish to pursue studies but was a victim of an unscrupulous school owner, he may wish to consider changing nonimmigrant status but must explain the circumstances of being a that he was a victim. Otherwise, the best approach is careful planning and being diligent in the choice of schools.

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