Author: tancincowp

On September 26, 2012, a federal appeals court rendered a decision en banc in favor of the appellants against the United States Citizenship and Immigration Service (USCIS). In the consolidated case of De Osorio v. Mayorkas, the court ruled in essence that aging-out children (those turning 21 years old), should have the opportunity to immigrate with their parents.

Aging Out Children

To be eligible to join the parents in immigrating in the United States, the children must at least be less than 21 years old when the visa is available to be issued.  The visas are made available by the U.S. Department of State based on priority dates or dates when their U.S. citizen or green card holder petitioners filed the petitions. This policy makes a backlog a logical consequence if we consider the numerical limitations in these circumstances, given that typically, there are more petitions than available visas. For intending Filipino immigrants, the backlog is not just extensive; the wait could be quite outrageous. Visas may take more than 20 years for petitions filed by U.S. citizen siblings; they may take anywhere from 15 to 20 years, for petitions for adult children filed by US citizens, depending on whether or not the adult children are married. Since the wait time for visas to become available is ridiculously long, children will naturally grow older and if they are 21 or older by the time the visas are available, they are no longer eligible to immigrate with their parents. Since the children are ones who lose out in the process of waiting for the visas to become available, family separation becomes inevitable.

To prevent this from happening, legislation was enacted called the Child Status Protection Act (CSPA) that allowed a child to immigrate despite reaching the age of 21. This law was created in 2002 and up to the present time, the USCIS has been constantly sued for its erroneous interpretation of the provisions of CSPA.

The USCIS limits applicability of CSPA to specific cases and excludes aged out children in categories where it actually should be applied. In a very recent case, the Ninth Circuit Court of Appeals handed a decision stating in essence that aged out children in the third and fourth preference categories may also immigrate with their parents through priority retention and automatic conversion.

In light of this recent court ruling, the USCIS is mandated to apply the CSPA to aged out children of the third and fourth preference category.

The De Orosco Decision

Elizabeth has a visa petition filed on her behalf by her U.S citizen father on January 29, 1991. At the time the petition was filed, Elizabeth’s children were below 21 years of age. When her priority date became current on December 15, 2005, Elizabeth’s children turned 21 years old. After receiving her green card, Elizabeth filed petitions for her now adult children under the second preference. The waiting time under the second preference category for adult children is 9 to 10 years. Elizabeth wants to have her original priority date of 1991 retained in her children’s petition. According to her, the CSPA protects aging out children and that in 1991, when the petition by her father was filed, her children were all below 20 years old. The USCIS denied her request for priority retention. She filed a lawsuit with the U.S. District Court which also affirmed the USCIS decision. An appeal was filed thereafter with the Ninth Circuit Court of Appeals and initially Elizabeth lost her case. A request for hearing en banc was made and finally, in a vote of 6-5, majority of the justices ruled in her favor.

The court interpreted CSPA in favor of significant number of aging out children who are similarly situated. It explained in its decision after hearing arguments from the plaintiffs and the government that the aged out child may retain the priority date of the petitioned parent and that there will be automatic conversion to the second preference category.

Following prior regulations on priority retention, a new petition is filed for the adult child by the parent and a request for the priority date retention will be made. Once the priority date retention is granted, a visa will be immediately available to the aged out child. These steps will actually avoid the strenuous process of having to file a new petition and waiting in line again for a new priority date to become current.

Limited Applicability

The USCIS has the prerogative to appeal to the Supreme Court if it decides to do so. In the meantime, what can the aged-out children do? The decision was rendered only within the jurisdiction of the ninth district and those petitioners who are residing in this district may file their new second preference petition and ask that the old priority date in the original petition be assigned to these petitions. It will be difficult to predict what USCIS is going to do with these requests considering the limits of the ninth circuit’s jurisdiction. These matters may be taken individually or on a case-by-case basis in the absence of uniform guidance from USCIS. Hopefully, the court’s interpretation of the CSPA will be adopted by the USCIS across the board and that a policy memorandum or regulation be established to settle this decade-long controversy relating to aged out children.

(Tancinco may be reached at law@tancinco.com or at 887 7177or 721 1963 or visit her website at tancinco.weareph.com/old)

The victim of domestic violence who is being deported may file self-petition for a green card. Various factors are considered for the approval of the immigrant visa but among these factors, the marriage to the abusive spouse must be established as having been made in good faith. This is already difficult to prove in short-lived marriages; it is more difficult in cases of marriages involving domestic violence. In the latter, the abuser is almost always in complete control, there is a strong possibility that destruction of evidence relating to the marriage is destroyed intentionally.

Renato, a U.S. citizen, married Janice in January 2011. He filed a petition for immigrant visa and adjustment of status on behalf of Janice at the U.S. Citizenship and Immigration Service (USCIS). After only three months from date of filing of the petition, Renato began showing signs of a violent nature—he started beating Janice when they argue, he would throw things at Janice when angry. Since Janice’s adjustment of status is still pending with the immigration service, she was afraid to do anything about the violence being perpetrated against her, she tolerated the abuse in silence and she thought this was her only option. During one of Renato’s fits, the couple’s neighbor decided to call the police and reported the violence on Janice. The police arrived and arrested Renato. Janice left their marital home in haste.

Janice was referred to a non-profit organization for temporary shelter where she stayed for a week. Feeling more empowered to face her situation, she mustered enough courage to go back and get the personal belongings she left behind when the police came to their home. To her surprise, all her belongings were nowhere to be found. Renato informed her that he had filed for a divorce and that he withdrew the petition he filed on her behalf. He then spitefully told Janice that he destroyed all their photographs, letters and any document he could get his hands on that is in any way connected with their marriage. Thereafter, Janice moved to another state to live with a distant relative.

Due to Renato’s withdrawal of Janice’s petition, the USCIS placed Janice in removal proceedings. She retained legal counsel who filed an application for immigrant visa under the Violence Against Women Act (VAWA).  To qualify under VAWA, however, proof of validity of Janice’s marriage to Renato is required. Since Janice no longer has in her possession joint documents evidencing her marriage, her application for self petition as an abused spouse under (VAWA) may be denied. What are her options to avoid being deported?

Filing the Self Petition

As a victim of domestic violence, Janice may avail of the protection afforded by the provisions of the VAWA. She can file her own petition without the participation of her U.S. citizen spouse. Janice has the burden of proving her eligibility for the immigrant visa status under VAWA. She needs to prove (1) the fact of her marriage to the U.S. citizen;(2) that the marriage was valid and entered in good faith; (3) the she suffered and was the victim of extreme cruelty and (4) that she is a person of good moral character. Janice’s difficulty is that her marriage was not only short-lived, whatever limited documentary evidence she possessed to evidence her marriage had already been maliciously destroyed by her former spouse.

Secondary Evidence

If there is no primary evidence of the good faith marriage aside from the marriage certificate, secondary evidence should be submitted. Secondary evidence is a less strict standard of proof and means that any credible evidence will now be open to consideration to determine whether or not Janice’s self-petition may be approved under the VAWA.

Janice could ask witnesses to the marriage to execute declarations that provide accounts of what they personally know about Janice’s relationship with Renato, the arc of the couple’s story, their activities before and/or during marriage, as extensively as such witness’ recollections would allow.

She could submit the police report that was prepared resulting from the incident with Renato as this could contain valuable information not just of the abuse but also of facts surrounding the couple’s domestic situation at the time, their joint residence, and other matters.

She could also get statement from the women’s center or non profit organization where she sought refuge after she was forced out of the conjugal home, including confidential counseling records (if she chooses to allow disclosure) of her sessions with psychiatrists and the like. Just like proving that the marriage was in good faith, a detailed declaration by family and close friends must be executed. It would be helpful if third-party declarations could independently describe the character of the abusive spouse, how he was dominant and controlling, how Janice never had a hand in any decision making in the marriage or in the handling of their joint financial affairs.

Awaiting Congressional Reauthorization of VAWA

The provisions of VAWA in its current language afford sufficient protection to all victims of domestic violence. The benefit of self-petitioning for non U.S. citizens is one of the best features of this law and protects non U.S. citizens, like Janice, from their abusive spouses. The VAWA was authored in 1994 by Vice President Joe Biden and was passed into law during the term of President Bill Clinton.

This year, VAWA is set to expire unless reauthorized by Congress. And like a host of other bills in the pipeline requiring congressional action, the VAWA is currently in the crosshairs of partisan bickering from either side of the political aisle. The Democrats want to expand the law to include language protecting Native Americans, immigrants, and the LGBT Americans, which the Republicans oppose. The Republicans for some reason propose to change the current language of VAWA to again involve the U.S. citizen abuser-spouse in the process of filing for immigration protection, defeating the very rationale behind the self-petition. These trends, if unresolved, would roll back current protections for victims of domestic violence. For the thousands of other Janices in this country and thousands more like her mired in seemingly hopeless situations of domestic abuse, here is hoping Congress could get its act together and re-authorized the Violence Against Women Act.

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

Jessica is a green card holder who was continuing her studies in Manila. She visits her parents in the United States every six months during her semester breaks. While in her senior year in college, Jessica gave birth to a child. The father of the baby refused to acknowledge the child and abandoned Jessica.

After graduation, Jessica was asked by her parents to return to the United States with her baby. She is apprehensive about filing a petition for the child since she is only a green card holder. She was told that it may take a couple of years before the child gets an immigrant visa. Is there a way that the child may immediately accompany Jessica back to the United States?

Derivative Child

A spouse who gets married or a child born before the principal immigrant’s admission to the United States gets the principal’s priority date and can accompany or follow-to-join the principal beneficiary. These family members, also called derivative beneficiaries, do not need to have separate visa petitions. Their names are usually declared and included in the visa applications of the principal beneficiaries.

The same rule applies to a green card holder who gives birth while on a temporary trip abroad. For the child to return to the United States with the mother, there are two requirements that must be met: (1) child must travel within two years from birth, and (2) green card holder parent must travel with the child and the travel must be the first return to the United States after the birth of the child.

In the case of Jessica, she can return with her baby to the United States before the latter’s second birthday. Jessica’s return to the United States, after the birth of her child, should be her first return. This means that she should not travel without the child upon her return to the United States. Otherwise, the child loses derivative status.

Recording Child’s Status

As the child will not need a visa to accompany his green card holder parent, certain documents must be presented to the immigration inspector at the United States port of entry. The accompanying parent must be able to show the parent-child relationship. Among the documents that must be presented are the passport of the child, green card of the parent, birth certificate of the child from the National Statistics office, and, proof that the parent has not abandoned her residence in the United States.

The Customs and Border Protection (CBP) inspector will process the child for the green card at the point of entry and will create a record of admission for lawful permanent resident.

Waiting Too Long to Return

One of the requirements of conferring immigrant status to the child is that the accompanying parent must have maintained resident status in the United States despite the temporary stay in the Philippines. Hence, it is important to keep in mind that there is only a two-year period to return to the United States after the child’s birth. In addition, those who return after more than a year must be able to demonstrate to the CBP inspector that the stay outside the United States was temporary only and that the ties in the United States are strong.  Thus, if there is a temporary work abroad, one should be able to carry an employer letter indicating that the individual was on a temporary assignment. Likewise, if the immigrant is studying, school record or transcript must be carried together with the other documents upon arrival in the United States.

Children Below 21 Years Old

Conferring immediate resident status to the child less than two years old without a visa application at the consulate applies in limited cases where the requirements mentioned above are met. It applies after the parent receives her green card status. In the case of children born before the parent applies for immigrant status, they may either be derivative beneficiaries of family petitions or may also acquire a following-to-join status as derivative beneficiaries.

Children below 21 years old may have the status of an immigrant based on their parents’ acquiring green card status. These apply to children born before the parent receives their immigrant visas and the parent’s visas were acquired under any of the family or employment based preferences categories. Unlike the rule on those two year old or less, these below 21-year-old children must apply for visas at the U.S. consulate as derivative children. They get their parent’s priority dates as following-to-join even after their green card holder parent has left for the United States.

Severe Backlogs in Family Petitions

For the month of September 2012, the U.S. Department of State released its visa bulletin showing the priority dates that are being processed for family petitions. For adult children it may take anywhere from 10 years to 20 years before the visas are processed. Depending on the circumstances of the case, conferring derivative status to a child below 21 years old at the right time may avoid lengthy waiting periods. If the child is not qualified as a following to join child, filing the petition right away after receiving the immigrant visa may be the appropriate route.

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