Author: tancincowp

Financial support may be one of the crucial issues that arise when there is a breakdown of marital relationship between a U.S. citizen and a petitioned spouse. This is usually expected when the petitioned spouse is unemployed and has no other means of support. Consider the following case of Maria who sought spousal support from her sponsor.

Maria entered the United States on a fiancé visa. Her petitioner, Peter, married her upon her arrival in the United States and executed an I-864 or an Affidavit of Support as part of the application for green card of Maria. The spouses lived for one year and thereafter separated and filed for divorce.

Instead of seeking spousal support through the state family court, Maria was advised by her lawyer to file in federal court where she stands a better chance of being awarded spousal support. Maria’s legal counsel informed her that Peter owes her money under the affidavit of support he signed. Hence, he filed a civil lawsuit for enforcement of contract. The district court ruled in favor of Maria and considered the affidavit of support as a contract. Peter was ordered to pay spousal support as part of his obligation when he petitioned Maria for the green card. He was obligated to pay his spouse an amount equivalent to 125 percent of the ‘poverty income level’.

Enforceable Affidavits of Support

Those who are petitioning relatives for U.S. immigrant visas are required by law to execute affidavits of support before visas may be issued. These affidavits are submitted to assure the U.S. government that the petitioned relative will not be a public charge or that they do not apply for government assistance or welfare upon arrival in the United States.

While these documents are termed as “affidavits”, they are in fact enforceable contracts. The petitioner agreed by signing the affidavit to provide support to maintain the sponsored alien at an annual income not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable. Aside from the government agencies, the sponsored immigrant may sue the U.S. citizen sponsor if he does not provide the support as required by law. This is what happened in the case of Stump v Stump, an Indiana Northern District court case where the U.S. citizen petitioner was ordered to pay spousal support based on the affidavit of support that he signed on behalf of his petitioned spouse.

Limits of Enforceability

The affidavit may only be enforced while it is in effect. The petitioner is no longer liable in the following cases: (1) when the sponsored spouse becomes a naturalized U.S. citizen; (2) sponsored spouse earned enough income in 40 qualifying quarters under the social security law; (3) either the sponsor or the sponsored spouse dies; or (4) sponsored spouse abandons her lawful permanent resident status and departs the United States.

Divorce or separation from the sponsored spouse does not terminate enforceability of the affidavit of support.

The civil case for enforcement is filed with the appropriate district court and the nature of the case may be breach of contract or specific performance of the contract.

Poverty Guidelines

In executing affidavits of support the U.S. Citizenship and Immigration Service provides information on what level of income must be maintained by the petitioner for purposes of petitioning a relative. This level of income is based on the poverty guidelines released yearly by the U.S. Department of Health and Human Services.  

Generally, a spouse seeking financial support based on the Affidavit of Support is awarded an amount equivalent to one household. This may amount to approximately $11,170 per year. This is not an absolute figure and the court may modify the exact amount to be paid by the sponsor.

Avoiding Bitter Separations

There are not too many sponsored divorced spouses filing for enforcement of affidavits of support. Many still desist from taking this route, as they feel beholden to their petitioners who they recognize as their genuine sponsors and who provided them with the opportunity to immigrate to the United States. Yet there are disgruntled ex-spouses who opt to file for financial support.

For bitter separations or divorce and for those who decide to file a case against the sponsoring spouse, note that there are possible defenses that may be raised to win their case against the sponsored spouse. One of these is the proving fraud on the part of the sponsored spouse by showing that the marriage was used simply for immigration benefits.

To avoid these civil lawsuits, it would be best for separating spouses to enter into amicable settlement agreements in regards to the terms of separation and spousal support. Or to be proactive about it, to consider drafting agreements where the sponsored spouse waives any future claims against the petitioner similar to pre-nuptial agreements.

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

Former Washington DC Mayor and currently council member, Marion Barry decried the increasing number of nurse immigrants in U.S. hospitals, singling out the apparent disparity in the great number of Filipino nurses currently staffing such care facilities vis-à-vis local nurses, as somehow a testament to what he sees is a “bad” situation.

In his attempt to encourage schools/hospitals to hire more local teachers/nurses who are “residents of the District of Columbia”, he made disparaging comments against Filipino teachers/nurses that are offensive and xenophobic, succeeding only in dividing his constituents and reinforcing the stereotype that immigrants are to be feared, that they are out to “steal” U.S. jobs, that they are a threat to Americans’ economic well-being and way of life.

As a public official, Barry should have been more discriminating in his public pronouncements.

It is true that most U.S. hospitals/school districts have immigrant health care workers/teachers in their employ. It is true, too, that Filipino nurses/teachers fill up quite a significant number in these facilities.  What Barry fails to understand or acknowledge is that Filipinos have always filled the shortages of nurses and teachers in the United States for many years now.

Immigrating through an offer of employment by a U.S. company is not as easy as filling up a job application. The U.S. employer has to go through the rigorous process of petitioning all these nurses/teachers ensuring that no U.S. citizens or residents are affected by the hiring of all these nurses/teachers. Necessary safeguards have been put in place by the U.S. Department of Labor to protect the interests of the local U.S. residents. U.S. immigration policies are crafted to ensure that the hiring of foreign nationals would not adversely affect local residents.

Filipino health care workers have contributed significantly to the health care industry specifically in the provision of care to those who need it most and in the most critical time when there was a severe shortage of these nurses.

The same is true of Filipino teachers. If there are available and qualified local employees to fill up open teaching positions, the districts will not have to go through the rigorous process of applying for labor certifications and immigration petitions for Filipino teachers. In fact, as a matter of policy, when teachers’ services are no longer needed, their temporary visas are not extended or are revoked by the U.S. Citizenship and Immigration Services.

Contrary to the logical inferences that could be made from Barry’s uninformed and offensive commentaries, there is no displacement of local workers by the hiring of Filipino teachers and nurses.

Shortage Occupation

The registered nurse is still categorized as a shortage occupation by the U.S. Department of Health. This position still falls under the Schedule A occupations where the need for recruitment of native born nurses need not be documented. Registered nurses may apply directly for an immigrant visa petition.

Unlike in the last decade, registered nurses no longer occupy a priority in terms of immigrating to the United States. There is now a long wait for nurses under the third employment category. The delay is not attributed to the fact that there is no longer a shortage but rather it is a result of “oversubscription” of visas in this category resulting in retrogression. Filipino nurses who are in line for immigrant visa petitions may still have the opportunity to receive their working visas or green cards when their priority date becomes current.

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

Last week, an immigration judge made a side comment in court. She said that the reason she encounters multiple marriages and fraud among Filipinos in deportation cases is because there is no divorce in the Philippines. Of course, I just have to mention that majority of the Filipinos are still conservatives who believe in the sanctity of marriage. Instead of responding, she just smiled and looked at me with sarcasm. I understood that what she was trying to say was that it is not at all unusual for Filipino individuals to have multiple marriages.

An individual may indeed have multiple marriages but only one is considered a valid and legal marriage.  In the area of immigration, confusing and quite obscure situations are created.

Consider the following case: Anna married James in 2002. Two children were born of the relationship. On the fifth year of her marriage, James left for the United States on a nonimmigrant tourist visa. After six months in the United States, James overstayed and decided not to return to the Philippines. He filed a divorce from his wife Anna with the Superior Court in California. After it was granted, James married Carla who is a U.S. citizen. Carla is his long time girlfriend from high school who is also divorced from her first husband.

Anna eventually had a suitor who is also a foreign national who wants to marry her. However, the divorce decree obtained by James who is still a Filipino citizen is not valid in the Philippines. Anna, therefore, had to file for annulment in a Philippine court but her petition was denied. The California divorce decree not being recognized in the Philippines and her annulment petition having failed, Anna is still considered legally married to James.

In the meantime, James who is now a green card holder wants to come back to the Philippines and visit his children from Anna. He knows that he is still validly married to Anna under Philippine law. This is a clear case of bigamy under Philippine law. However, he has a valid and legal marriage to Carla under US law.

NATURALIZED US CITIZEN SPOUSES

In the case of James above, being a Filipino citizen, he is confronted with a case of bigamous marriage under Philippine law. Should James eventually become a US citizen, however, he can actually re-file a new divorce petition with Anna. In such a case, the new divorce judgment will be valid under Philippine law as divorces between Filipino nationals and foreign nationals can be valid under our Philippine Family Code.

DUAL CITIZENS

James as a green card holder and a Filipino citizen will be considered to have a bigamous marriage. If he, however, becomes a U.S. citizen and gets a divorce judgment, his foreign divorce can be valid in the Philippines. Now, what happens if he takes an oath back to becoming a Filipino citizen again under our Dual Citizenship law? Will his marriage to Anna remain valid and will he be in a bigamous marriage to Carla?

OTHER BIGAMOUS MARRIAGES

Even if there is no divorce law yet in the Philippines, there are legal ways to terminate a marriage. Annulment is one common option. Another option is when one of the spouses acquires a different citizenship and files for divorce in a foreign jurisdiction.

Notwithstanding the legal options, still multiple marriages may arise in different situations.

In a true-to-life case, Rissa had been having an affair with a married man named Paul.  Despite being already married, Paul still managed to marry Rissa as his second wife. Thereafter, Paul migrated to the United States with his first (and legal) spouse.  Rissa eventually was also able to obtain her tourist visa to visit the United States. In her visa application, she indicated she is married to Paul (even if she knew that this marriage is bigamous). She claimed that she was married in order to improve her chance of obtaining her visa. When Rissa arrived in the United States, she found out that Paul had already divorced his first wife. Thus, Paul and Rissa eventually remarried. However, in applying for her green card, Rissa only declared her second marriage to Paul and concealed the first marriage. Nevertheless, the misrepresentation was discovered and Rissa was put in removal/deportation proceedings.

‘MULTIPLE MARRIAGES’ MAY BE AVOIDED

Lack of divorce law in the Philippines has its adverse impact in the immigration area.  There being no divorce, it is a reality that many Filipinos do jump from one marital relationship to another. It is a reality that some relationships do fail. Are we not better off then giving validity to divorce for deserving parties?

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

Benny arrived in the United States with a tourist visa in 1995 with his wife and 2 minor children. Two months after his arrival, Benny applied for political asylum and obtained an employment authorization card. In 2000, Benny and his wife divorced. In the meantime, Benny was not aware of the status of his political asylum case. Unknown to him, his case application was denied and he was ordered deported by an immigration judge. He finally received this deportation order but ignored it.

Two years after his divorce, Benny married a U.S. citizen named Cathy. They have one child together. Cathy petitioned Benny for a green card. During his interview, Immigration and Customs Enforcement (ICE) agents arrived and arrested Benny. He was detained without bail because of his outstanding deportation order. Benny is the only breadwinner in the family. Cathy begged the ICE agent not to deport her husband and to consider the fact that Benny has a U. S. citizen spouse and minor child.  He was deported nonetheless.

The same fate happened to Helen who has been undocumented for many years.  She had a relationship with a U.S. citizen and had a child. The father of the child abandoned Helen and reported him to the U.S. Immigration and Customs Enforcement.  Helen’s child was only 8 months old when she was arrested. Helen begged, as her US citizen child would be without a mother if she were deported. Just like Benny, Helen was deported. Her child was forced to leave with her. Despite the fact that the child is a U.S. citizen, the immigration agent reasoned that the mother had the choice to leaving the child or taking the child with her. Naturally, the mother opted to take the child with her.

Mandated Reporting of Parents Being Deported

The U.S. Department of Homeland Security is mandated yearly by Congress to report the number of parents of U.S. citizens being deported. In a February 2009 report, more than 100,000 parents of US-born children were deported from the U.S. between 1998 and 2007. In a March 26, 2012 report, Department of Homeland Security records show that it deported in six months 46,486 individuals who have at least one U.S. citizen child.  Family unity no longer seems to be a major consideration of an individual’s deportability.

Petitions by U.S. Citizen Children

Children born in the United States become citizens at birth.  US immigration law only allows a U.S. citizen child to petition their parents after they turn 21 years of age. The mere fact that an undocumented immigrant has a U.S. citizen child does not in itself confer a benefit to the parent.

Extreme Hardship to Children

When a parent is put in deportation proceedings, the U.S. children may become qualifying relatives to support a relief from deportation.  This happens when the parent in proceedings is requesting the immigration judge for relief from being deported because of continuous physical presence of ten years or more in the United States. In this particular case, the children need not be 21 years old to support the parent’s defense in court.

In these cases, it is not enough that one has a U.S. citizen child. It must also be proven in court that the child will suffer extreme hardship if the parent is deported. Proving extreme hardship in court remains a challenge for most deportees because separation of family members in itself is not sufficient. There must be other factors that must be considered.

In the case of Helen above, her deportation proceedings happened before she had a   U.S. citizen child and so she was not able to have any relief available.

No Anchor Babies

Many conservatives in Congress oppose the giving of legal status to young undocumented children under the DREAM Act due to the fact that these children will eventually petition their undocumented parents as soon as they get status. To these conservative legislators, this is like giving amnesty to undocumented immigrant parents.

In certain cases also, presence of U.S. children alone is not enough to waive a fraud or misrepresentation case. Only presence of U.S. citizen spouses or parents will waive a fraud perpetrated by a deportee or an applicant for visa.

Merely having a US citizen child is no defense for undocumented parents from being deported. With recent Homeland Security figures showing that undocumented immigrants are being deported despite having US citizen children, one would question whether promoting family unity is still the central policy behind US immigration. Or, has the theme of promoting family unity been sacrificed in exchange for restrictive immigration policies?

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