Author: tancincowp

Renato entered into a valid marriage with Juslyn in 1997 in a simple civil ceremony. They have two children born in 1998 and 2000. In 2001, Renato visited the US and never returned. He subsequently married a US citizen, Mary Anne, who petitioned him to become a green card holder.

The prior marriage in 1997 was concealed by Renato and he never revealed the existence of his two minor children. In 2005, he naturalized to become a US citizen again concealing his prior marriage and children. Thereafter, he filed an annulment of his first marriage in the Philippines after he became a US citizen.

Last year, Renato decided to file petitions for his two minor children who now 10 and 12 years old. The petitions were filed with the USCIS (US Citizenship and Immigration Services). Renato received a letter was received from the USCIS asking for additional information regarding the mother of the two children. He was asked to prove that his marriage to the mother of his children was validly annulled. Since he did not annul his marriage prior to marrying his US citizen spouse, the petitions for the children were both denied. The USCIS forwarded Renato’s case for further investigation to determine whether he committed fraud in obtaining his immigrant visa.

Bigamous Marriage
    
Subsequent marriage without annulling a prior marriage will definitely result in a bigamous marriage. The USCIS would not have approved Renato’s application for permanent resident status had they known that his marriage to a US citizen was bigamous. While it may seem to be irrational to enter into a second marriage without obtaining dissolution of the first marriage, cases of these kinds are not uncommon.

Bigamous marriage is not looked upon with favor either in Philippine or US jurisdictions. For some, faced with a desire to keep the first family intact, a subsequent marriage for convenience is obtained. There are cases, though, where the second marriages are entered into good faith and the couple becomes husband and wife for all intents and purposes. When a prior marriage is discovered, then issues of trust and betrayal arise resulting in a complicated situation.

In normal circumstances, what is expected is that a prior marriage be dissolved first before entering into a subsequent marriage. In a jurisdiction where divorce is not recognized, what migrant Filipino nationals do is to obtain a divorce in the US and use this divorce decree to enter into a subsequent marriage. While foreign divorces are legally recognized in the jurisdiction where it was obtained, such divorce decrees are not recognized in the Philippines unless the former Filipino national is now a US citizen.

Children in Dilemma

After remarrying and obtaining the green card or US citizenship, the bigamous parent normally applies for an immigrant visa for the children. Concealment of the existence of a prior marriage and children in prior applications will most likely yield problems in the petitioning process. Questions regarding the marriage of the parents of the children being petitioned will always arise. If the matter of a prior marriage or lack of dissolution thereof has been concealed, the children’s petition for immigrant visa will not be granted because of “prior fraud”. Although, the children are not the ones who perpetrated the fraud, they suffer the effects of misrepresentation by the petitioning parent. Their future of migrating abroad is compromised by past decisions made by their parents.

Federal Criminal Prosecution

No legitimate purpose will be served by misrepresenting the presence of prior marriages and children in applying for immigrant benefits. There must be a discernment of the fallacy that the naturalization to a US citizen will resolve all prior fraud and misrepresentation. These days, criminal prosecution for falsifying naturalization applications are being brought in cases where it is discovered that there is a material misrepresentation in obtaining the green card and the citizenship.

It is understood that divorce, much less a no fault divorce, is not yet recognized in Philippine jurisdiction. However, when a migrant worker, whether a US citizen now or not, is able to obtain a valid divorce in his new place of residence abroad and has since remarried, the foreign divorce should also be made valid for the Filipino spouse left by the migrant worker. This will allow the divorced spouse left behind to also move on and remarry. In addition the children’s future in regards their support and custody, as well as their qualification to be petitioned by the migrant parent, will not be compromised.

(Tancinco may be reached at law@tancinco.com or at (02)887 7177 or (02)721 1963)

Anna has been a green card holder for almost ten years now. She is suffering from a kidney disease. A kidney transplant will relieve her of her medical condition.

Her brother, Mark, who lives in Manila was identified as the kidney donor. Mark has been evaluated and was found to be a perfect match. He agreed to donate his kidney to Anna. Unfortunately, Mark has been denied a visa to enter the US and is unable to go the US to donate his kidney.  In the meantime, Anna continues to suffer as she receives daily peritoneal dialysis treatment. Various health care workers are attending to her, which includes her charge nurse, clinic dietitian and nephrologists.

A letter was sent by Anna’s sister asking how Mark will be able to obtain the appropriate visa so the kidney transplant for Anna may be scheduled. The letter states that there is a pronounced shortage of organs available for donation in America and the average wait is now over 5 years for a deceased kidney donor. According to her sister, the percentage of finding a perfect match, even among family members is very low and their brother Mark is among a very short pool of rare candidates.

The Visitor Visa

The most commonly applied type of nonimmigrant visa is the visitor’s visa or the B2 visa. Thousands of B2 visas are issued each year but many more are also denied.  While the visitor’s visa is known to be the type of visa that is used to visit friends and relatives, it is also the same visa that is applied for rest and medical treatment. This is a legitimate activity that is defined by the US Department of State.

Just like applying for a visitor visa for pleasure, an applicant who wants to enter the US for medical treatment must not just document the fact that he is to undergo surgical procedure. Proving the need for one’s presence in the US as a kidney donor is just one of the many factors being considered by the consular officer. An applicant must likewise prove that (1) he has enough ties in the Philippines to return after the medical procedure; (2) must have sufficient resources to finance his trip and cover for the medical costs and (3) must have no ground for inadmissibility or prior visa violation.

The nonimmigrant visa is by its nature a temporary visa and requires the applicant to return to his homeland after a brief trip abroad. This may be shown by, among others, a proof of steady and regular employment, strong family ties, and, assets here. There is no hard and fast rule on how and what sufficient ties mean and the appreciation of the documents to prove such is within the discretion of the consular officer.

Judicious Exercise of Discretion
    
The US Department of State recognizes that visas for medical emergency raises humanitarian concerns. The denial of visas for most seeking medical treatment may be due to lack of sufficient proof of financial ability to pay the medical cost. In a December 2001 Memorandum by the US Department of State, consular officers were advised to be judicious in granting visas and to require proof of sufficient financial capability to cover all medical treatments as well as follow up care.

In several cases mentioned in the 2001 memorandum, abuses of the nonimmigrant visas for emergency medical treatment were identified at the expense of US hospitals. There were complaints of unpaid medical bills for follow up treatments, which had become detrimental to medical institutions.

Increasing health care costs in the US raise serious concerns not only with foreign nationals but also to its citizenry. Obama’s health care reform program, while it may have passed into law, is still highly opposed by conservatives and has become a pivotal point of contention between the political parties. With an economic crisis that is barely recovering, access to health care for millions of citizens and residents is a pressing issue for the Obama administration.

Cost Benefit to Granting the Visa
   
It is understood that a “kidney transplant” in the US entails significant costs. If this is covered by the heath care insurance of Anna and the rest of Anna’s family members, then there is no reason to deny the donor entry to the US to undergo the transplant. What is sad is that abusive cases of misuse of the visa for medical treatment impact adversely those who have good intentions to save the life of family members.

If a donor is allowed to enter the US and a kidney transplant is to occur, then the financial cost of taking care of a sick patient will be reduced drastically.  After a successful transplant, Anna for example, will no longer need daily dialysis and medical care.  The benefit of saving a life and medical savings cost should outweigh the government’s concern about possible “abuses” of medical emergency visas.

Mark should try to re-apply for a B2 visa again and show sufficient proof of what is technically required of an applicant. If everything else fails, he may try seeking for a “humanitarian parole visa” directly from the Department of Homeland Security in Washington DC.

In these days of uncertainty, the health condition of a family member remains a premium priority. For transnational families, obtaining a visa for medical treatment should not become a major hurdle, as the right to medical treatment is not just admittedly a humanitarian concern but a human right.

(Tancinco may be reached at law@tancinco.com or at (02)887 7177)