Author: tancincowp

Raquel was married to Walter for many years. They have two children. Walter left the family home after eight years of marriage and never communicated with Raquel and her two children. Fours years after Walter’s disappearance, Raquel obtained a judicial declaration of presumption of death of Walter.

Joshua, a US citizen, filed a fiancé visa petition on behalf of Raquel and derivative visas for two minor children. Raquel was able to fly to the US on a fiancé visa with her children. Joshua and Raquel got married in California. During the adjustment of status interview, Raquel was questioned about the “death” of her prior spouse. She submitted all documents relating to the presumption of death which the immigration examiner questioned. An investigation was initiated by the USCIS in Manila and it was discovered that Walter is still alive and was living with another woman. Raquel’s application for green card was denied because USCIS found Raquel to still be validly married to his “first” husband. Raquel, thereafter, was advised to just file for Annulment of marriage in California and then remarry Joshua.

Relevance of Marital Status

Many immigration benefits that are applied for depends on the marital status of the visa applicant. Aside from obtaining green card through marriage to a US citizen, there are other benefits where marital status is relevant. For petitions under first preference category (or petition by US citizen on behalf of adult unmarried children) and second preference category ( petition by green card holder parents on behalf of adult unmarried children) the beneficiary child should remain “unmarried” until the prospective immigrant reaches the US and obtain the green card. Thereafter, a marriage may be entered into without jeopardizing the validity of the green card. If it is discovered that there was a civil marriage or a prior marriage that was not dissolved or annulled the immigrant visa shall be construed as improperly issued and thus subject to rescission in deportation/removal court.

The same situation may arise also in petitioning stepchildren of US citizens. If the marriage between the US citizen stepfather and the natural mother is void because of a pre-existing marriage that was not dissolved, then no immigration benefits will be conferred to the stepchildren.

Self petitioning widows of US citizens are also at risk of being denied visas if it is discovered that there was a prior marriage that was not annulled by the petitioning widow before marrying the US citizen spouse.

Termination of Prior Marriages

When an individual marries more than once, the party applying for immigration benefit must show evidence of the termination of the first marriages as well as the existence and validity of the second marriage. The person seeking the immigration benefit of a marriage has the burden of establishing the validity of the marriage.

Proving that the prior marriage is terminated may either be through court documents granting annulment or dissolution of the marriage. The USCIS generally recognizes annulment granted in a foreign country such as in the Philippines, as a matter of comity, as long as that particular court had jurisdiction to grant the annulment.

Establishment of the validity of dissolution can be fairly complex requiring the consular or immigration officer to become familiar with the type of foreign divorce in the country where it was obtained. In the Philippines where divorce is not recognize, Filipino nationals seeking immigration benefits based on subsequent marriage must prove that prior marriages have been declared validly annulled. The same goes with those individuals under the first and second preference category where they should prove that there was no marriage at the time they were petitioned.

Marriages Void From the Beginning

There is an important distinction between void ab initio and voidable marriages for purposes of immigration benefits. Annulment decree may state that marriages are void from the beginning (ab initio) and that the effect of the annulment decree is like there was no marriage that occurred. On voidable marriages, they are considered valid marriages until they are declared as void by the court.

The immigration authorities usually do not question the validity of divorce where it was obtained where one of the parties was physically present with the court’s jurisdiction. Collateral attack on divorces is beyond normal adjudication precluded by the principle of comity.

It becomes complicated for immigration examiners because there are certain cases where annulment decree is not given retroactive effect even if it is void ab initio. This is when there are cases of fraud, misrepresentation or manipulation of the immigration law. When no retroactive effect is given to the annulment, an unexpected consequence is usually faced resulting in denial of visas.

Truth about Marital Status
    
Marital status is a key component in obtaining visas. First and second preference immigrant cases and marriage to US citizens are almost always investigated for prior marriages. The red flag is raised especially when the visa applicant has children. The birth certificates of the children usually have dates of marriage of parents and further investigation is conducted until the truth is discovered.

There is a growing trend of denying petitions on technical and mechanical grounds. Careful attention to minor factual discrepancies in documents submitted, correcting them when possible or explaining them when not possible is advisable than later on reacting to adverse consequences. The truth will come out and they will eventually discover what you have done no matter how much dirt you put over it. If it is not discovered soon, it will come out in the most unexpected way.

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

Shirley was ten years old when she migrated to the US through the petition of her adoptive parent. When she reached twenty one years old, her adoptive mother passed away. Shirley is single and has no children of her own. At first, she thought of petitioning for her biological mother. Unfortunately, she was told that she could not petition her biological mother because the parental relationship was terminated at the time she was adopted by her US citizen adoptive parent.

As her way of giving back to her family back in the Philippines, Shirley, who is now a US citizen and gainfully employed decided to adopt the two minor children of her brother. She went through the same adoption process in court and an order of adoption was successfully obtained. Thereafter, a petition for her adopted children was filed right away after receiving the adoption decree. The US Citizenship and Immigration Services denied the petition very recently considering that Shirley has not met the two year residency requirement for purposes of petitioning adopted children. Shirley is wondering how she will be able to fulfill this requirement. In the meantime, she had exercised parental control and custody over the minor children by sending them to school and providing for their monthly support.

Adopting A Relative

An adopted child is treated as a child for immigration purposes if (1)the child was adopted while under the age of sixteen years and (2)the child has been in the legal custody of, and has resided with , the adopting parent(s) for at least two years. It is irrelevant whether the legal custody and residence take place before or after the adoption.

Legal custody for two years requires either final adoption decree from the court or any official document in the form of a custody award by a court or recognized governmental entity.

In the case of Shirley, she should be able to prove that the she adopted the children who were under sixteen years old and that she has legal and physical custody of the children for two years.

Proving Physical Custody

Unlike in orphan adoptions, physical custody of the adopted child is required for relative adoption. The two years legal custody and residence must take place either before or after adoption.

The adoptive parent is required to live with the adopted child for at least two years. It is not enough that she lives with the adopted child. It must also be proven that she exercises strong evidence of parental control especially if the adopted child lives in the same household as the biological parent.

Evidence that may be presented to show valid two year physical presence is met include ownership of property where the child resides, provision of financial support and day to day care, assumption of responsibility for important decisions in the child’s life and physical living arrangements.

Physical presence with the adopted child need not be continuous. It could be met also even if there is a break in residence as it is computed in the aggregate. The two year residency requirement must be completed before the adopted child reaches the age of twenty one.

Realities of Compliance

Filipinos are known to have close family ties and extended families. This culture must be taken into account in describing the relationship between the adopted parent and the child. Until the child migrates with the adopted parent, this child usually lives with the biological parents or with relatives.  The standard of proving that the adopted parent has primary control over the adopted child in that household is really high. Satisfying this specific requirement of primary control has always been really challenging.

In addition, willing adoptive mothers from the US have extended their generosity in raising children of their siblings or relatives by filing petition for their adoption and their later on for their immigration petitions. No matter what the bona fide intention is for the adoptive mothers, the two years physical requirement remains a bar for them to petition their successfully their adopted children.

During this economic downturn where unemployment rate is at its highest and where many businesses suffer financial loses, more and more employees are finding it difficult to obtain leave or vacation from work. The most that a regular employee may spend for vacation is approximately two to three weeks each year. For them to spend two years off from work in order to meet the two years physical requirement is risking their employment status. Of course, those on retirement or who are unemployed may have no problem meeting the two years physical requirement.

There are many adoptive mothers who find themselves in the same predicament as Shirley. The desire to give their adopted children a better future in the US remains elusive. The current economic crisis affected almost sectors of society including the many mothers who wants to be their adopted children. Not only are the businesses, the homeowners or bankers are affected. Those impacted are also thousands of mothers who are separated from their children not just because of the lengthy process of petitioning relatives but also of their inability to meet the legal requirement of physical residence.

Despite the many challenges, adoptive parents especially the mothers are determined to live with their adopted children and to give them a better future. Their responsibility towards their adopted children was not imposed on them but was a conscious decision from their heart to extend love and care to their adopted children. For this, we commend all adoptive mothers for all the many sacrifices they endure just to better the lives of their children. This goes also to those who played the roles of mothers in their lives to include the single mothers, father-mothers, straight moms, gay moms who have children.  To all the mothers who had exhibited unselfish love towards their children, we honor you for all that you do and admire your dedication to improve your children’s lives. Happy Mother’s Day!    

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

This is a true story of Nimfa who was a nursing graduate from a popular university in the Philippines. Right after graduation, she had the opportunity to go to the US to visit her sister. She used her B1/B2 visitor visa to enter the US. After her authorized stay expired, she continued to stay in the US and tried to find employment.

In 2001, Nimfa found a job as a “caregiver” at an elderly residential home in Los Angeles. She worked really hard and exhibited diligence and efficiency in her job as a caregiver. Her employer, Bobby, also a Filipino national but a naturalized US citizen, decided to promote her as the facility administrator. This employer also agreed to petition Nimfa for a green card. However, since the process took a number of years, Nimfa was actually working without proper legal documents.

One day, when Nimfa was out on a break from work, one of the elderly patients became very ill. Nimfa ran back to the facility and attended to the patient. After two days, the patient was rushed to the hospital and died. The relatives to the patient were outraged with the facility administrator and felt that the patient was a victim of elderly abuse and criminal negligence. It was discovered that there were medical conditions of the deceased patient that were not properly attended to by the employees in the facility. Nimfa was held accountable.

A criminal case was filed against Nimfa as the administrator of the facility. She was also detained at the County Jail while they were conducting an investigation on the death of the patient. She spent more than eight months in jail for Elderly Abuse and could not afford an attorney to represent her. The employer who owned the facility denied having anything to do with Nimfa. He did not extend any assistance at all and worse, the petition for Nimfa was dropped. Her employer stayed out of the criminal case and gave false testimony against Nimfa. After one year, Nimfa was released from the county jail. As soon as she was released, she was arrested again by the Immigration and Customs Enforcement for being an undocumented alien. Nimfa indicated to her attorney that she wish to return home to Manila to be with her family. She has not seen her family for nine years. She is now scheduled to be deported back to Manila anytime soon.

Helping or Pinning Down

Of the12 million undocumented immigrants in the US, there is no official count on how many Filipinos are part of this population. We all know that majority of the Filipinos who happen to be undocumented or TNT, came in legally until such time that their authorized stay expired. The decision to become an unlawful immigrant happens for many different reasons but mostly economic.

A significant number of  Filipino immigrants in the US  have succeeded in their chosen fields and have contributed to the growth of  the US economy.  In the health care industry, many Filipinos are not just caregivers but also business owners who operate their own board and care facilities or residential care facilities either for the elderly or developmentally disabled individuals.

It is not surprising then that Filipino care home owners hire Filipino workers for their facilities. Those who are sincere in helping legalize the status of their workers do file appropriate legal documents with the US Department of Labor or with the US Citizenship and Immigration Service. However, there are also sad cases where the employers exploit the vulnerability of their petitioned workers. They are sometimes paid low wages, work long hours without break, and burden their employees with unnecessary responsibilities. The workers on the other hand feel beholden and are compelled to put up with the abuses.

In the case of Nimfa, she worked hard and diligently for the employer. She worked overtime and hardly took vacations. Just when she thought that her employer would be compassionate and helpful during a crisis, it was also the moment she was unexpectedly abandoned and left to suffer alone.

If indeed there was a finding of criminal negligence on the part of Nimfa, it should have also been attributed to her employer.  However, not knowing the system and lacking in resources, Nimfa became a victim. Nimfa’s Filipino employer, on the other hand, was able to relieve himself of liability at the expense of  Nimfa..
 
The case of Nimfa is a classic case of  Filipinos abandoning Filipinos. It is the opposite of bayanihan and which is I would refer as  “laglagan” or dumping a person at the worst possible time.  Though rare, these occurrences are not unusual.

Criminal Case and Immigration

Immigration law provisions relating to issuance of green cards are very clear when it comes to criminal aliens. In Nimfa’s case,  she was charged with an aggravated felony and is deportable. Her deportation will also bar her from returning to the United States with limited waivers available..

Employers Moral Obligation

It is very difficult to assess whether an employer’s action in putting the vulnerable employee in a worse situation measures up to the standard of an upright person worthy of respect from his community. Without being judgmental, it is worth mentioning that TNTs may not have the proper documentation to reside and work in the US but they have their human rights which we all must respect. Employers have legal rights but this also comes with a moral obligation to treat their employees with fairness and compassion.

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

Dear Atty. Lou Tancinco,

I have been reading your article at the Philippine Daily Inquirer.  I have some questions.
 
I am a 44 years old widow.  My kids were born in New York City when my husband was holding a J1 visa as a medical resident/ fellow when he was still alive. He died 10 years ago.  I  am planning to get married again, if my new husband will adopt my kids who are now 16 and 13, will there be a any problem since they are American citizens? Can they still petition me and my new husband when they reach the right age?
 
A Doctor’s Widow

Dear Doctors Widow,

Adoption has the effect of creating a parent-child relationship with the adopted children. The adoptive parent will have legal responsibilities to the children when an adoption decree is granted by the appropriate judicial court.

The fact that the children were born in New York and are US citizens will not have any impact on the adoption by your future husband. The factors that are taken into account in adoption are the ability of the parents to perform their duties as adoptive parents and whether the best interest and welfare of the adoptive children will be served by the adoption process. The citizenship of the child will not be a major consideration as long as the biological parent gives voluntary consent to the adoption process.

When children of Filipino parents are born in the United States, they become US citizens by birth. However, as children of Filipino parents, the Philippines also consider these children as Filipinos. For this reason, these children are considered as holding dual citizenship.

For purposes of petitioning parents of US citizens, you have to wait until your child turns 21 years old before he/she can file a petition for you. As far as the petition for their stepfather, you have to marry him before the children turns 18 years old to establish the stepfather-child relationship for immigration purposes.

Under the Immigration and Nationality Act, a stepchild relationship will be created for purposes of immigration petition if the marriage creating the stepchild relationship occurred before the child’s 18th birthday and that at the time the immigration petition is filed, the stepchild relationship still exists.
Marriage Issues and Stepchild Petitions

Aside from the fact that the stepchild relationship is created before the child’s 18th birthday, it is important to note that the marriage must still be valid at the time the petition is filed and upon issuance of the immigrant visa.

If for some reason, the stepparent and the biological parent are separated when the petition is filed, the petition may still be approved as long as there is no legal separation or divorce that is filed. In addition, there must also exist a continuing family relationship between the stepparent and stepchild.

You indicated in your letter that you will soon re-marry. I assume that this marriage is a good faith marriage with the intention to build a life together with him and your two children. There are certain marriage issues which may be examined by the consular officers in determining whether this marriage is valid. You should be ready to show proof of a valid marriage during the interview process for the immigrant visa. The law is very clear that no immigration benefits may be conferred to your future husband if it is discovered that the marriage is a fraudulent and was entered into for immigration purposes only. This rule applies even if the US citizen children are innocent about the sham marriage and even if this marriage is not legally terminated.

Good luck and I hope that this information is helpful.

Atty., Lou Tancinco

*(Lourdes Santos Tancinco, Esq is a partner at the Tancinco Law Offices, a Professional Law Corp. Her main office is located at One Hallidie Plaza, Ste 818, San Francisco CA 94102 and may be reached at 415.397.0808 or their Manila office at 887 7177;  check their website at tancinco.weareph.com/old. The content provided in this column is solely for informational purpose only and do not create a lawyer-client relationship. It should not be relied upon as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You can submit questions to law@tancinco.com)