Author: tancincowp

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)

Paolo was only six months old when he arrived in California with his parents. After his visitor’s visa expired, Paolo’s parents decided that they continue to stay in unlawful status. Paolo practically grew up in the United States and did not learn about his immigration status until he was 16 years old. When he discovered that he was undocumented, Paolo stopped studying and instead worked, without authorization, as a caregiver for a family friend. In the meantime, Paolo’s parents were divorced and Paolo was left to the care of his Uncle Ramon.

After hearing of a “deferred action” initiative for young immigrants, his Uncle Ramon sought legal assistance in order that Paolo may obtain a work permit and be issued a proper identification. On August 15, 2012, Paolo was told that the deferred action is only temporary in nature that will last for only for two years. Also, when he applies for deferred action, the U.S. Citizenship and Immigration Services will have access to all his biographic and other personal information and there is uncertainty whether this information will be used in the future against him.  Paolo still insists on requesting for deferred action. He is willing to take the opportunity to be able to get at least an identification document and a social security number.  He plans to pursue his college education as soon as he gets “deferred action.”

Thousands of undocumented young immigrants feel the same way as Paolo. Despite uncertainties of future risks of applying for deferred action, they are determined to take advantage of Obama’s new initiative. On the first day of filing for consideration for deferred action, thousands of young immigrants who are out of status lined up at the offices of various advocacy organizations to attend workshops on  “deferred action”. The U.S. Citizenship and Immigration Services began accepting requests on August 15, 2012 and it is expected that there would approximately be one million young undocumented students who will file requests for deferred action.

The New Initiative: DACA

On June 15, 2012 President Obama announced his immigration initiative on deferred action. To distinguish the implementation of deferred action to the benefits of the proposed DREAM Act for undocumented young immigrants, the U.S. Department of Homeland Security introduced a new acronym- D.A.C.A. referring to the Deferred Action for Childhood Arrivals (DACA).
 
DACA helps a large population of young undocumented immigrants who came to the U.S. under the age of 16 acquire “deferred action” and obtain employment authorization document. To be eligible for DACA, an individual should have been under the age of 31 as of June 15, 2012 and should have come into the U.S. before reaching his 16th birthday.  The Filipino advocate for the DREAM Act, Jose Antonio Vargas, an award-winning journalist, is unfortunately disqualified because he just turned 31 prior to June 15, 2012. However, those who turned 31 years old after June 15, 2012 are still eligible.

Not for New Arrivals

To be considered for DACA, there must be proof of physical presence in the United States for five years prior to June 15, 2012.  The young immigrant should have continuously resided in the United States since June 15, 2007, up to the present time. Hence, those who entered after June 15, 2007 shall be disqualified from DACA. Recently arrived young immigrants may not apply for DACA. Those who plan to travel and apply for DACA for their children should be aware of this five-year physical presence requirement and are discouraged from abandoning their children abroad to become TNTs.

Must be”TNT” to Qualify

DACA is only for those who are undocumented; either they entered without inspection before June 15, 2012, or their lawful immigration status expired as of June 15, 2012. Those children who are still in valid nonimmigrant status are not eligible. One parent of a child in valid “M” student status asked whether his child would qualify for DACA. His child wants to apply for DACA and a work permit. He was told that DACA is only for undocumented and since his child has a valid immigration status, he may not qualify for DACA.

Uncertainty of the Program

It is clear based on several pronouncements by the Department of Homeland Security that DACA is not an amnesty or a path to citizenship. There are only two things that a young immigrant may take out of this DACA program: (1) reprieve from deportation and (2) work permit or employment authorization. It is also a temporary fix for only two years and if there is change of administration, there is a possibility of changes in the DACA program. Nevertheless, like Paolo, thousands of young immigrants are willing to take advantage of DACA.  They perceived DACA as a small window that allows them to live, even on a temporary basis, without fear of deportation, harassment or exploitation and alleviate, even a little, the difficulties they face as undocumented immigrants. In essence it provides them that sense of security that that they will not have to face being torn away from the land that they know in their hearts is also their home. And for these reasons, they are willing to take the risk involve should there be changes in policy in the future.

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

A child of a United States citizen (USC) or lawful permanent resident (LPR) may derive immigration benefit as long as the legal relationship between the child and the USC/LPR parent exists. What if there is no relationship with the child? How does one establish relationship that will allow a USC/LPR to petition a child who is not related to him by blood?

To address this issue, we examine the case of one of our readers who emailed the following interesting inquiry:

“I met a wonderful woman while I was on vacation in the Philippines. In the few months that we were together, I fell in love with her. Upon my return to the States, she informed me that she is pregnant and that I was the father of the child. I returned to the Philippines after the birth of the child and acknowledged the child as my own in his birth certificate. I proceeded to the U.S. Embassy in Manila to register my child as a U.S. citizen. I was told to take the DNA test, which I did. Unfortunately, the DNA tests showed negative results meaning that I am not the biological father of the child. I left for the United States and returned after a few years to the Philippines to visit the child. I felt bad for the child because he seemed to be neglected by his mother. I want to petition the child even if he is not my own child. What should I do to be able to give this child a better future? Thank you very much and God bless your heart. – Anonymous”   

Proving Parent Child Relationship

Generally, the birth certificate is the sole document that proves the relationship between the parent and the child. In filing immigration petitions, a parent submits proof of his citizenship or resident status and the birth certificate of the child. To prove the legitimate status of the child, a marriage certificate of the parents is usually submitted.

Since the birth certificate is a strong proof of the relationship between the parent and the child, there are some instances where an individual, not the real parent, would simply have his name recorded as the “parent” on the birth certificate, in the erroneous belief that this action creates the parent-child relationship. This often happens in adopted children cases where a child’s birth certificate is made out to show the name of the adopting individual as the “parent” (instead of the natural/birth parent) so that such individual could “adopt” the child without necessity of securing a judicial decree of adoption. This is what is commonly known as a “simulated” birth certificate, the adoptive parent is declared to be the parent on the birth certificate despite the lack of judicial authority to do so.

It must be clear that in immigration petitions, “simulated birth certificates” are not acceptable proof of parent-child relationship. As soon as an immigration examiner or consular officer is put on notice about facts showing that the reported parents are not the biological parents, the petition is denied for lack of legal relationship.

Despite the strong evidentiary nature of birth certificates to show parental relationship, therefore, its submission is not enough and other factors are taken into account before immigration petitions for children are approved.

To illustrate, a grandparent who obtained a birth certificate naming him/her as a “parent” on behalf of a grandchild, would circumvent the immigration process meant for petitioning direct issues/children and would not be allowed. Factors that raise red flags on the simulated nature of the birth certificate could be the age of the grandparent at the time of the birth of the child, the age gap between the siblings and the child claimed to be the grandparent’s own child, the age difference between the grandparent and the child, as well as other similar circumstances.

DNA Tests

There is nothing in the regulations that require mandatory DNA testing to prove a parent-child relationship. The consular officers and the immigration examiners exercise their discretion in cases where there are doubts on the parent-child relationship. Most high fraud posts, which include the U.S. Embassy in Manila, often require DNA testing especially in illegitimate cases or children born out of wedlock.

This is what happened in the case of our letter writer. He was required to take the DNA test, which he did willingly and confidently. To his dismay, the child was found not to be his biological issue. Despite proof of the past romantic relationship he had with the mother of the child, the DNA test yielded negative results. These results are conclusive as far as the U.S. Embassy is concerned and is determinative of the absence of the parent-child relationship.

Petitioning A Non-Biological Child

One expects the reaction of an individual, made to believe he was the biological father of a child when in fact he was not, would be that of outrage. Here, our letter writer decided to be magnanimous and instead opted to try to petition this child.

There are two ways to petition a non-biological child. One way is through the adoption process. After 2008, adoption of orphans is governed by the Hague Convention on Adoption and generally, the child is not supposed to be “pre-identified”, meaning the child to be adopted may not be identified by the adoptive parents. Instead, the Inter Country Adoption Board will take on this role of identifying who will be adopted. If inter-country adoption is not applicable, the child must be domestically petitioned as a “relative” child, in which case, the adoptive parent must show at lease two years of physical presence in the Philippines and at lease two years of legal custody over the adopted child before the immigration petition could be processed.

The other way to petition a non-biological child is through the stepchild petitioning process. This is not applicable to all non-biological children.  A U.S. citizen may petition a stepchild only if the biological mother and the U.S. citizen enters into a valid and good faith marriage before the stepchild turns 18 years old. In this case, the U.S. citizen may petition the child as long as there is proof of the marital relationship with the mother.

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