Author: tancincowp

Megan and Philip met in the US in 2006. Their friendship turned into romance. After two years, Philip proposed marriage to Megan. It was at this time that Megan revealed that she was a ?TNT?. All the while she represented to Philip that she was a US citizen.

Philip was astonished to discover that Megan was ?TNT?. He was disappointed because he himself was a TNT and thought that Megan would be able to assist him with obtaining his green card. The relationship of Philip and Megan turned sour. Philip did not want to live as a TNT in the US and decided to come home to the Philippines. Megan stayed behind and refused to come back to Manila.

Megan was working as a ?caregiver? for a health care facility when the Immigration and Customs Enforcement (ICE) came to arrest undocumented workers. Megan was one of those arrested and put in deportation proceedings. While in deportation proceedings, Megan married her US citizen friend Mario in order that she would get her green card. Unfortunately, the petition by Mario on behalf of Megan was denied. As a result, Megan was eventually deported back to the Philippines. Upon her return to Manila, Philip picked Megan at the airport. Thereafter, Philip and Megan renewed their commitment to each other and lived as a couple again. Megan was still in denial on why her petition by Mario was denied when in fact they lived together and had a valid marriage.

Good Faith Marriage

Generally, marriage is the fastest option to obtain a green card. However, it is also the fastest way to be removed from the United States if it is discovered to be a fraudulent marriage.

To be considered as valid for immigration purposes, marriage must be legally valid and entered into in good faith from the time of its inception.

Marriage is legally valid if recognized as such by the law of the jurisdiction where the marriage took place. Once a marriage has been determined to be legal, the second line of inquiry is whether or not at its inception that marriage is bona fide. The test of its viability is whether the parties intended to establish a life together at the time they married.

A Matter of Proof

The burden of proving validity of a bona fide marriage is on the applicant. This may be proven through documentary and testimonial evidence during an interview.

Different types of documents may be presented by the parties during the interview, and, may include joint bank accounts, joint lease agreements, joint income tax returns, joint utility and telephone bills, life insurance, health insurance, joint credit cards, photographs with friends and family and written statements from acquaintances and neighbors.

The joint documents may not be difficult to produce especially if the couple has been living together as husband and wife for quite awhile. Despite significant documentation about the marriage, there are many cases where the examiner may still question the validity of a marriage. This is because the response of the couple during the interview may reveal a lack of spousal relationship. When this happens, the petition by the US citizen may still be denied despite substantial documentary evidence..

Marrying Pending Court Proceedings

When a Filipino in the US is put in removal or deportation proceedings, it is much more difficult to prove the bona fides of a marriage especially if the married couple has not been living together that long. Though the immigration court has jurisdiction over the deportation case, a spousal petition by a USC has to be filed with the USCIS which can approve or deny the petition. The USCIS examiner may schedule the couple for an interview. The examiner process may involve having the couple be interview separately but asking them the same questions regarding personal aspects of the marital relationship. Oftentimes questions delve into personal information such as the other spouse?s favorite food, color, friend, sport or television show. Other question may inquire into the other spouse?s scars, birthmarks or tattoos. If their responses do not match, they should be given an opportunity to explain. Should they fail to explain the differences in responses then the petition will be denied. This is what happened in the Megan?s case. She and her US citizen spouse gave different responses to the same questions and were unable to explain their discrepancies. Also, the US citizen spouse was also compelled to admit that the marriage entered into just to assist Megan obtain her green card.

Permanent Bar

If there is a finding that a Filipino has engaged in a fixed marriage to obtain a green card, a provision in the Immigration and Nationality Act bars this person from future immigration benefits. Hence, even if a spouse who has been found to have entered into a marriage for convenience later on marries in good faith another US citizen, he/she is still barred from receiving a green card. This harsh provision was intended to prevent foreign nationals from entering into fraudulent marriages.

Marrying for the Right Reason

There are Filipinos who enter the US and find legal ways to obtain their greencards. Unfortunately, there are those who also enter into fixed marriages to obtain their greencards because of the desire to get it the fastest way.

It must be remembered that the fastest way is not always the appropriate way of legalizing one?s stay. Marrying solely for purposes of ?immigration benefit? is not a solution but a compounding problem for many undocumented immigrants in the US. Megan made a mistake in not following her lover back to the Philippines. She could have avoided all the trouble and anxiety of having a deportation case. Sometimes, following the dictates of the heart may be the best path to take??. for it is our heart, our feelings of love and desire that may inspire us on how best we spend our lives wherever we may be.

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

Jose and Girlie, married couple from Manila, gave up their promising careers to work for a US company. Two years ago, they arrived in the US on H1B visas and were offered to be petitioned for green cards if they continue to work for this company. Recently, their employer notified them that they are being terminated and that no green card petition shall be filed on their behalf. Jose sought legal advice on whether finding a new US employer will help him maintain his H1B status and stay in the US. He wants to know his options.

In the beginning of this week, there was a bloody Monday where more than 62,000 US workers were reportedly terminated from their job in just one day. The worse can me expected in the coming days.

Foreign Workers in the US

Generally, immigrant workers occupy mostly highly skilled occupations in the field of medicine, engineering, the physical sciences, health care, computers and mathematics. There are also unskilled workers who are foreign born in the field of construction, building and maintenance and agriculture.

We see Filipino workers in the various different fields mentioned but most especially in health care. Many are US residents with green cards but there are a number of them who are working with temporary working visas.

All sectors of the society had been affected by the US crisis.

Those recently granted immigrant visas are now joining the significant number of terminated employees who are looking for occupations. Unemployment in the US rose to 7.2 percent and dropped 2.59 million jobs since the recession in December 2007.

The green card holders who are new immigrants may find it difficult to search for jobs when most industries are reducing labor costs and terminating employees.

However, their predicament is not as worse as two other categories of foreign workers. These are the workers who have pending applications for adjustment of status based on the petitions by their US workers and those who are in the US on temporary working visas.

Employment Based Petitions

Green card may be obtained either through family or employment petition. In family petitions, as long as the petitioner is a US citizen or lawful permanent resident with the financial ability to executive an Affidavit of Support for the beneficiary, the financial crisis does not affect them that much.

For those who are being petitioned by US employers, there is a distinct scenario. If the US employer who initially filed a petition for green card for a foreign worker terminates the petitioned employee, serious consequences will occur. The petitioned employee needs to find a new employer under the same terms and conditions as s/he was petitioned in order to remain in lawful status. And this has to occur six months after the petition and adjustment is filed in order that they will qualify under the portability provisions of the American Competitiveness Act of the 21st Century. Otherwise, if the application is pending for last then six months and the US employer decides to terminate employment, the petitioned employee shall fall out of status.

Temporary Working Visas

Filipino workers who are holders of H1B or temporary working visas will lose their status if they are terminated. The H1B visa is by nature an employer specific type of visa. There is no immediate transfer of visa petition and that a new visa petition must be filed if the H1B visa holder is terminated.

During these difficult times for employers, the H1B visa holders are usually given only a few days notice before they actually terminated. This means that they are not afforded sufficient time to find new employment to maintain their lawful nonimmigrant status.

Hard Choices

Both employment based immigrant and nonimmigrant working visa holders are definitely going to lose status if they do not find substitute employment. No work, no visa. There is an economic downturn now even if we force ourselves to become optimistic. With everyday news of economic disaster, the immigrant workers are left with hard choices.

There are H1B visa holders who will take their employer?s offer to buy a one way ticket back to the Philippines to avoid being branded as ?TNT? and move on with their life in the homeland.

Many of those we encounter have decided to take the road to uncertainty and wait for the legalization or immigration reform to be adopted by the Obama administration. Each individual decides based on their specific circumstances. Sometimes the choice made is the only choice left for the Filipino worker. Unless, there are genuine government programs open for returning overseas Filipino workers they will be compelled to look for other options if not in the US then in different countries. As resilient as they may get, they are likewise ready to ?buckle down and work harder?.

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

Joseph, 68 years old US citizen, sent me a disturbing email. He stated that he plans to petition, as his adopted daughter, a 19 year old girl she met in a restaurant bar in Southern Philippines. According to his email, he is single and he has no “intent to marry” this Filipina. He just wants to treat this “child” as his own daughter, to send her to school and give her a good a future in the US.

While technically, this US citizen petitioner will not succeed in his intention of filing a petition as an adopted child for the 19 year old girl, there is still something suspicious about his intentions. Under the Immigration and Nationality Act, to petition an adopted child, the adoption must take place before the child turns 16 years. Obviously, his intentions are suspicious when he mentioned at least three times in his email that he has no intention to marry the young Filipina.

This situation is just the same as a US citizen asking how she may obtain a visitor visa for her 18 year old Filipina girlfriend whom he recently met in Manila. According to him, he plans to marry her girlfriend but wants her to stay in the US first as a visitor. When I suggested fiancé visa, he brushed aside the idea. It turned out that he was a married man and wants her girlfriend to be in the US where he can easily reach her when he wants.

Both cases raise red flags for potential abusive relationship.

Actual Intent

The K1 visa is granted to a fiancé of a US citizen. The purpose of this visa is for the fiancé to enter the US and marry the US citizen within 90 days of his or her arrival. This is the appropriate visa for those wanting to marry their US citizen petitioners. Many immigrant families start through this process of petitioning resulting in success stories.

There are also unfortunate cases of “fiancé” visa holders who were not able to obtain their appropriate lawful permanent resident status. This happens when upon arrival in the US, the relationship of the petitioner and his/her fiancé turns bitter resulting in refusal on the part of the petitioner to file the appropriate petition for their spouse.  Worst is that the petitioning US citizen refuses to marry his/her fiancé within 90 days and the fiancé falls out of status.  Under the law, if the marriage does not occur within this 90 day window, the K1 visa holder must depart the US.

It is not uncommon to see failed or abusive relationships in K1 visa cases. And if this happens, most of the time the K1 visa holders opt to remain in the US even if their US citizen petitioner refuses to sponsor them or even to marry them. In such cases, the K1 visa holder falls out of status and is considered as“TNT” or an undocumented alien.

Reliefs Available

There is a bar to obtaining green card for fiancé visa holders who failed to consummate their marriage with their K-1 petitioners. This means that even if the fiancé visa holder later marries another US citizen, other than his or her petitioner, the law does not allow the adjustment of status to lawful permanent resident. Instead, she shall be required to depart the US and failure to depart will render the fiancé as subject to deportation or removal.

There are reliefs available for those who are victims of domestic violence or have been victims of certain crimes.  The “U” visa may be applied by a person who has suffered substantial physical or mental abuse as a result of having been a victim of one or more crimes. Among those enumerated crimes are rape, trafficking, domestic violence, sexual assault and abusive sexual conduct.

Another type of visa that may be availed of if the fiancé turns out to be a trafficking victim is the “T” visa.  It is granted to those who have been subject to “severe trafficking” which is defined as the use of force, fraud or coercion for sex trafficking or involuntary servitude.

Laws Are Not Substitute to Vigilance

It is difficult to determine in fiancé visa petitions on whether the couple are planning to build a life together or are just using each other for their selfish interests. Meeting one’s fiancé through the internet and proposing marriage after few months of communication raises a red flag. True, there is such thing as love at first sight but this is not often the case.

Beneficiaries of fiancé visa petitions must be on their own lookout when they migrate with their US citizen petitioner. They should get to know the person they intend to marry well and should familiarize themselves with the new environment of their future US residence. It will always be good to identify support network whether it be a relative or a friend in the event no marriage occurs or if the marriage fails.

Indeed, there are safeguards placed by legislation to protect abuses of fiancé visa petitions. But laws are not substitute to vigilance. Future fiancé visa holders must be alert for signs that may indicate potential abuses.

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

Jenny entered into a contract of employment with a US recruitment agency in 2005. She was told that she will be working in a US hospital as soon as the visa is made available. Her petition for I-140 was processed and has a priority date of September 2005.

Having already waited one year for her immigrant visa, Jenny ran out of resources and was forced to accept a nursing job in Australia. She has been working in Australia for more than three years now but still has not abandoned her dream of working the US.

During Jenny’s visit to the Philippines for the holiday season, she intended to ask her recruitment agency on when exactly will she receive her visa. She has been hearing about businesses and facilities closing in the US and is wondering if her approved petition will be affected by the current financial crisis.

Retrogression

While visas for registered nurses fall under Schedule A, which is the category that certifies a US shortage occupation, the processing for these visas is still taking a long time. Unlike before where the category for registered nurses was placed under a special classification that added more visa numbers, the category of registered nurses is incorporated under the third employment-based preference category (or EB3).

There are only certain numbers of visas that are available for each given fiscal year. Since there are more applications/approved petitions than the number of visas available, there is now a backlog in the issuance of visas which is often referred to as retrogression.

For the month of January 2009, the US Department of State’s visa bulletin indicates that the visa processed for nurses are those that were filed on May 2005. This means that the petitions with priority dates of May 2005 are the ones being issued visas consular offices.

Changes in Circumstances

When registered nurses interested in working in the US signs contracts with recruitment agencies, they are expected to work for the designated US facility or hospital for certain period of time. Most of the contracts signed show a two or three year commitment to work for the petitioning employer.

If those being processed for visas are those with priority dates of 2005, there are probable changes in circumstances that may affect the grant or denial of the visas.

The lengthy period of waiting may have resulted in changes on the need of the US employer. Because of budget constraints that are being experienced by most public institutions, the US hospitals dependent on federal, state or city funding may have resulted in the termination of employees. In the City of San Francisco, there is a plan to terminate several hundred employees from the Department of Public Health because of budget issues. The public hospitals have started terminating employees also to reduce their expenses.

Terminating public employees in public hospitals or facilities has a severe effect on approved petitions on behalf of foreign nurses. This holds true also for private institutions. The Immigration and Nationality Act requires the US petitioner to have the financial ability to pay their employees for the foreign worker to be granted the immigrant visa. If the petitioner has no more ability to pay additional workers, even if the petition was approved before 2009, the immigrant visa petition will be adversely affected.

USCIS Memo on RN Petitions

The US Citizenship and Immigration Services issued in December 2008, a Memorandum regarding the processing of petition for registered nurses. According to the USCIS Ombudsman, the need for registered nurses remains critical and that the processing for their immigrant visa petitions must be expedited.

This Memorandum is a significant proof of the need to give important consideration to the processing of immigrant visas for registered nurses. The processing time that is addressed in this document is the processing of the Petition for Immigrant Worker or the I-140. This petition, if approved, will have a priority date that will indicate when visa is finally going to be issued. Unfortunately, even if the proposed expedited processing is established and the I-140 petitions are approved, there will still be waiting times because of retrogression.

Legislation passed by US Congress adding more visas to the RN petitions, or even better, exempting them from the visa quota, will be the faster and more practical solution to obtaining faster visas for the RNs.

Remaining Hopeful

The message we send for the New Year is all about remaining hopeful despite the many challenges of a US financial crisis and a global recession. The same remains true for aspiring Filipino RNs who wants to work in the US.

The demand for registered nurses is still high. The healthy financial situation of each petitioner must be intact to continue the processing of the immigrant visa petition. For the registered nurses who have waited for many years, it is prudent to research on the existence of the US employer considering that many US businesses and institutions have been adversely affected by the financial crisis. The good news is that the coming Obama administration has health care as among the top on his priority list. Let’s be hopeful that real solutions be taken in the next 100 days after his inauguration. Happy New Year to all!

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