Month: April 2015

Samantha was introduced to Steve in 2009 while she was working for a retail company in Manila. Steve is a U.S. citizen and has been Samantha’s client for a long time. After a few months, Samantha and Steve had a formal relationship. Steve then filed a fiancé visa petition for Samantha.

In 2011, after being married for more than a year, no petition for green card was ever filed by Steve on Samantha’s behalf. A few months after living together, Steve started to act strange. Samantha was often yelled at and prevented from contacting her friends who also live in California. She was forced to stay home and not work because she did not possess any proper immigration document. Every time Samantha raises the issue about her petition, Steve would be upset with her and would show his displeasure. Samantha started feeling scared everyday. A few times, Steve would go home drunk and hurt Samantha by forcing her to have sex with him. When Samantha could no longer bear her situation, she escaped and went to a non-profit organization protecting women who are victims of domestic violence. A self-petition was filed by Samantha under the Violence Against Women Act (VAWA). Since she felt alone and depressed, she did not wait for the result of her petition. She departed for Manila and returned to her former place of employment. Samantha was happier after she separated from Steve.

In the meantime, Steve was prosecuted for domestic violence and served a few months in prison. Samantha’s self-petition was approved by the USCIS after she had already left for the Philippines. If Samantha wishes to pursue her application for immigrant visa based on the self-petition that she filed, will she be able to obtain the visa at the U.S. Embassy? How will her unlawful stay of more than 2 years affect her visa application?

VAWA Self Petition

Those who are survivors of domestic violence may file as “Self Petitioners” under the Violence Against Women Act. These self-petitioners include three categories: (1) spouse of US citizen or green card holders; (2) child of the spouse subjected to extreme cruelty and (3) parents abused by US citizen children at least 21 years old. The survivor must have been subjected to extreme cruelty, which could either be physical, psychological, sexual or emotional abuse.

In the case of Samantha, since she had left for the Philippines, she would still be able to have her visa processed at the U.S. Embassy in Manila. She would need to be interviewed by the consular officer about the circumstances of her case because she would be subject to the 3-10 year bar from returning to the US due to her accrual of more than 1 year unlawful presence in the US.

What Samantha can do to successfully obtain her visa despite the unlawful presence is to explain to the consular officer the substantial connection between the abuse and her prior Unlawful Presence. In this case, Steve had full control over Samantha. He intentionally did not file Samantha’s immigrant petition and the latter was not allowed to leave their conjugal home. This abusive behavior resulted in the unlawful presence of Samantha. If this substantial connection between the abuse and the unlawful presence is established, Samantha may obtain her immigrant visa without facing the 3-10 year bars and travel back to the United States to start her life anew.

(Atty.Lourdes Tancinco may be reached at law@tancinco.com or at 887 71 77 or visit her website at tancinco.weareph.com/old)

With numerous petitions being filed and limited number of visas available, it is taking several years for visas to be available on approved petitions. For Filipinos who are waiting for visas, the wait can take longer than two decades.

Bernadette is a U.S. citizen and has one sister in Manila who recently became a widow. Bernadette wants to petition her sister so they can live in the United States together during their twilight years. Bernadette is now 69 years old and her sister is just a year younger.

Bernadette was informed that she can file a petition for her sister and it will be approved in a year. She filed the immigrant petition. The petition was approved with a priority date of 2014. Bernadette was excited but was told that the visa will not be issued to her sister until after 24 years. Why is it taking so long for family petitions to be processed?

Modernizing the U.S. Visa System

For Filipino nationals the waiting period ranges from 2 years to 24 years. Petition by green card holders for their spouse and minor children is currently taking around 2 years while petitions by U.S. citizens for their sibling is currently around 24 years. There is no uniformity in the movement of the priority date for each preference category in any given year. For instance for siblings petitions, in 2013 the priority date under the 4th preference category was 1989; and, moved to 1990 in 2014; and, is now 1991 currently for 2015. Under the first preference category of unmarried adult children of US citizens, the priority dates moved faster in the last three years from 1999 in 2013 to currently 2005 priority date this year of 2015. Not included in these preference categories are petitions for minor children, spouse or parents of U.S. citizens, which have immediate visas availability.

With the way the preference family- based petitions are moving, families remain separated for a long time. This is the reason why there is a need to modernize and streamline the U.S. visa system. President Obama’s Executive Action of November 20, 2014 did not just address the issue of the undocumented. It also included his directive to the Department of Homeland Security and the Department of State to develop policies that will ensure that the visas made available by Congress are made consistent with the demands. It also directed these agencies to see if unused visas may be recaptured so that they will add to the total number. Actually, it is similar to the “auditing” process of determining the number of visas that have not been used and whether these numbers may be put counted back to the numerical visa quotas. One of the interesting recommendations is that the visas for derivatives should not be counted towards the numerical quota.

Unless there is a change in the policy or an amendment by Congress, the family based petitioning process will remain a dysfunctional system incompatible with family reunification, which is the policy behind immigration. In the case of Bernadette, since she is now 69 years old, filing a petition now for her sister will result in their reunification when she is already 93 years old. Sadly, this is the ludicrous reality of the sibling petitions.

(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at 1 888 930 0808 (US) or (02)721 1963 (Manila) or visit her website at tancinco.weareph.com/old; facebookpage @tancincolaw)