Author: tancincowp

The process for petitioning minor children by green card holder parents is not as expeditious compared to petitions filed by U.S. citizen parents. Minor children of green card holders fall under the second preference category and may be issued visas at a later time depending on the movement of priority dates. To avoid waiting for several years until the priority date becomes current, the minor children may travel to the United States by applying for the  “following to join” visa. How can a minor child apply for this visa and what are its limitations?

Jose, a lawful permanent resident, petitioned Mariana as a single daughter over 21 years old. Mariana is not married but she has two children David and Joanna from her live-in partner, Mark. When Mariana’s visa became current, she immigrated to the United States alone. The children remained in the Philippines to finish high school and stayed with Mark until Mariana was financially capable of supporting the children. Mariana has been in the United States for five years and wants her children, now ages 17 and 19, to come to the United States.  However, Jose recently passed away. Can the children still qualify as following-to-join derivatives on Mariana’s petition by her father, or does she need to file new petitions for her children?

Derivative Children

In general, minor children of green card holders under the age of 21 qualify as “derivative” children/beneficiaries and have the same priority date as the principal applicant or the person who was originally petitioned. These derivative beneficiaries exist in cases where there is an original petition under any of the preference categories listing the children as beneficiaries of the principal applicant. Derivative means that the minor children are included in the principal applicant’s original petition. If the derivative children decide not to travel with their green card holder parent to the United States within 6 months, they will be eligible for following-to-join benefits at a future time.

There is no time limit to following-to-join but there are specific instances that will bar them from receiving following to join visas as derivatives. If the child ages-out or marries before immigrating, the child is no longer eligible and the original applicant, now the green card holder parent, will need to file a new petition for the child and establish a new priority date. The parent must remain a lawful permanent resident and must remain eligible for the same preference category in order for the children to be eligible for following-to-join benefits. If the parent becomes a US citizen, the following-to-join benefits for the minor children are lost. Furthermore, if the parent entered the United States as single, with minor children, and later marries before the children follow-to-join, the children are not eligible to immigrate because the principal beneficiary is no longer in the same preference category.

In Mariana’s case, her children still qualify as following-to-join derivative children despite the death of the petitioner because they are under the age of 21 and Mariana is still a lawful permanent resident and unmarried.  Even though Mariana’s father passed away, the children are eligible for following-to-join benefits because the factors establishing the benefits still exist. The option to apply for a ‘following to join’ visa will always be a better option than re-filing a fresh new petition under the second preference.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old , facebook/tancincolaw, or at 02-721-1963)

Filipinos may have the lowest US visitor visa issuance rate among foreign countries but not when it comes to fiancé visas. At the recent national immigration law conference held in Washington D.C. it was interesting to discover that the Philippines is considered the fiancé visa capital of the world. This fact is supported by figures published by the Department of State’s Bureau of Consular Affairs, which indicates there were 8,525 Philippine nationals in 2014 petitioned by their U.S. citizen fiancés. The Philippines is followed by China and Mexico with 2,177 and 2,101 fiancé visas issued for fiscal year 2014, respectively.
There may be several reasons for the steady rise of issued fiancé visas for Filipinos, such as an increased population of Filipinos in the United States, the ease and ubiquity of online dating services and social media outlets, or even the Philippines’ active tourism campaign of “It’s more fun in the Philippines” which attracted millions of visitors may have spurred many love connections.   Most plausibly, however, are the advantages in filing a fiancé visa petition over a spousal petition.
The fiancé visa is a temporary nonimmigrant visa.. The expected processing time is generally 5 to 8 months. This is relatively faster than a spousal petition (I-130) by a US citizen which can take up to one year to process the immigrant visa. Once the fiancé arrives in the U.S., the couple must marry within 90 days and file an application for adjustment of status for the “green card”.
Another advantage of the fiancé visa is the inclusion of derivative minor children. If the fiancé has minor children under the age of 21, the U.S. citizen does not need to file separate petitions for the children and they may travel with the fiancé as derivatives. Unlike spousal petitions where the U.S. citizen and his spouse must have married before the child turns 18 to qualify as a minor stepchild of the U.S. citizen and a separate petition must be filed for each child.
There are also certain protections afforded to fiancés.  If the U.S. citizen has prior arrests or convictions, especially for violence or sexual offenses, USCIS or DOS consuls will disclose this information to the fiancé. Furthermore, a US citizen with a conviction(s) relating to sexual offense against a minor is prohibited from petitioning for a fiancé unless the US citizen can prove to USCIS that he/she poses no risk to the fiancé.

The surprisingly high number of fiancé visas for the Philippines is a testament to the commonality of distant overseas relationships as well as the slow US immigration process for family petitions. Hopefully, most of the fiancé visa holders are now married to their US citizen spouses and living their dreams. For those who were not fortunate to marry their US citizen fiancés, there are still forms of relief that they may avail of especially if they have been victims of domestic violence.  With the uptick in the number of fiancé visas issued for Filipinos, it is important to increase awareness of spousal rights and domestic violence issues for non-citizens.

(Atty. Lourdes S. Tancinco may be reached at law@tancinco.com, tancinco.weareph.com/old , facebook/tancincolaw, or at 02-721-1963)