Author: tancincowp

Vivian has been a lawful permanent resident of the United States since 1999.  She lives with her children. A few months after suffering from an illness, Vivian decided to return to the Philippines.  She stayed in her hometown for more than two years where she eventually recovered from her illness. She now wants to return to the United States to reunite with her son.

Prior to returning to the United States, Vivian approached a man who was introduced to him as having “connections” to Philippine Immigration.  In order to conceal her lengthy stay in the Philippines, this man told Vivian that he can place a stamp on her passport to indicate that she only left the United States for less than six months. Vivian entered into an agreement with this man and gave her passport.

After a few days, Vivian’s passport was returned to her with a stamp from Philippine Immigration showing a stamp of her false arrival in the Philippines. This stamp indicates that she stayed only for a few months in the Philippines instead of two years.

Vivian returned to the United States last month and presented her passport with the US immigration inspector. She was taken to secondary inspection where she was questioned more extensively on the dates stamped on her passport. She was warned prior to answering questions that she could be prosecuted for perjury regarding false testimony and may face fine or imprisonment. Vivian eventually gave in and admitted the truth to the US immigration inspector. She cried and begged that she be released and allowed to enter the United States.

The immigration inspector asked Vivian to sign her written testimony. She spent more than five hours at the secondary inspection office and was handed a Notice to Appear for Removal/Deportation Hearing before an immigration judge. Instead of returning to the Philippines that day, she was given a temporary permit to enter the United States but will be facing deportation charges for fraudulently presenting a falsified document to gain entry to the United States.

What will happen to Vivian’s legal status? Will the immigration judge take away her green card permanently and be sent back to the Philippines?

SEEKING ADMISSION

A non U.S. citizen seeking entry into the United States must always carry a valid visa and travel document. Those who are non green card holders and who only possess nonimmigrant visas may be subject to expedited removal commonly called “airport to airport.”

For green card holders such as Vivian, she is considered to be seeking admission to the US. Despite being a green card holder, she is still subject to inspection. Unlike non-immigrants, however, she may not be subject to expedited removal. Upon arrival in the US, she will be asked to leave only if she voluntarily signs an “abandonment” of permanent resident status at the port of entry.

There are those who sign abandonment forms and request temporary entry on parole in order that they may be allowed to enter the United States for a few months. Thereafter, their green cards are considered abandoned and these individual need to get new visas to enter the United States.

CONSEQUENCES OF FRAUD

Committing fraud and willful misrepresentation is a basis for removal as well as a basis for refusal to admit entry into the US. The initial findings of fraud by the US immigration inspector may be contested in an immigration court during a hearing. Unfortunately, there are those who are fearful and decide to give up their green card immediately including their right to a hearing. Those who give up their right to a hearing sometimes make this decision after considering several factors and priorities. For instance, there are green card holders who really cannot be permanent residents of the US because they are running businesses in the Philippines which need their presence. Thus, giving up their green cards would not be a hard decision to make.  

 There are also green card holders who are still desirous of maintaining their green card because most of their family members are in the United States and they have pending petitions for their children still in the Philippines. These are the categories of green card holders who might want to exercise their right to a hearing in order to preserve their immigration status.

BACKDATING DOES NOT WORK

The Department of Homeland Security maintains a wide range of database that easily detects actual dates of travel of those entering and departing the United States. Backdating will only cause more harm than good. At best, an individual who plans to stay in the homeland for a lengthy period of time must plan on getting a re-entry visa prior to departing the United States. If the extended stay in the Philippine was not really planned but was due to circumstances beyond the control of the green card holder, obtaining a returning resident visa at the U.S. Embassy is a better legal option than falsified cachets on the passport. Backdating just does not work.

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

Spouses of nonimmigrant visa holder are usually granted derivative status and are afforded derivative visas to be with their spouse abroad. A legal relationship must be established to be able to show eligibility for a derivative visa. For those who have been living together without the benefit of marriage, there is still an existing regulation that will allow them to be with their partners during a temporary trip abroad.

Ruel and Maria have been living together for 10 years. They are not married but they have 2 children from their relationship: a 5-year-old son and a 7-year old daughter. For the past seven years, Ruel has been working as a Product Manager for a manufacturing company that is a subsidiary of a large multinational US-based company.

As a result of his exemplary work as Product Manager, he is being promoted to manage a small team in the U.S.  He would like to bring Maria and their two children with him.

The US company files a petition for Ruel as an intracompany manager. Ruel applies for his L1A visa at the US Embassy in Manila and his two minor children are allowed to accompany him as his dependents with their own L2 nonimmigrant visas. But what about Maria?

Common Law Spouses

For those living together without the benefit of marriage and who can document their lengthy relationship, the B2 classification will be an appropriate visa to temporarily accompany their partners abroad. Note that this rule applies only to those who are traveling as temporary workers, investors, students and diplomats posted in the United States.  It does not apply to common law spouses of lawful permanent residents and U.S. citizens.

Derivative status is generally for those partners who are married. It is legally impossible to apply for H4, L2, E2 and F2 for those who are common law partners. Considering that there is no derivative status, the B2 visa is an available visa as long as eligibility requirements are met.

Because Maria is not his spouse, she cannot qualify for an L2 nonimmigrant visa as his dependent. However, because she has been cohabiting with Ruel and she is the mother of their two children, she may qualify for a B2 nonimmigrant visa as Ruel’s domestic partner.
Temporarariness

The principal non-immigrant visa holder must still prove the temporary nature of the activity in the United States. For instance, in the case of Ruel, he should show that he would return to Manila after a brief stay abroad. The same with other nonimmigrants such as the H1B visa holders, E2 investors, L1 intracompany transferee or the F1 student visa holders.

The fact that the nonimmigrant visa holder will stay in the United States for more than one year is not the point of reference. It is proving the temporary nature of the visa of the principal that really matters.

Extensions of Stay

Usually, nonimmigrant workers or students are granted more than a year of visa availability. For the cohabiting partner, he will usually be granted an initial one year of B2 visa stay in the United States and then he can apply for extensions in increments of six months until such time that her partner returns to the Philippines after accomplishing the intended activity.

Same Sex Partners

Cohabiting partners include both the opposite as well as same sex partners. This was the interpretation made more than a decade ago by then former Secretary of State Colin Powell in his July 1, 2001 Cable to posts. Referring to the cohabiting partners’ B2 visa, he emphasized long-term relationships and is true for both opposite and same sex partners.

Although petitioning spouses in same-sex marriages are not recognized, this existing policy of allowing B2 visas for same sex partners of nonimmigrant visa holders appears to be an exemption.

Viable Relationship

Those who are granted the B2 visas to accompany their domestic partners must prove that the relationship is genuine and has existed for a long time. There should be proof of the viability of the relationship such as statements of joint finances, lease or deed of sale of their home, partnership agreements, if available, etc.

Since the visa that will be made available is the B2 visa, the cohabiting partner seeking this classification must still show that he has strong ties to the Philippines. This means that he/she should show that he/she has a home to return to after a brief stay abroad. A long-term relationship will be a critical factor.

If, however, the principal applicant has existing relationship with a legal spouse but maintains a live-in partner, the latter may not be eligible for the B2 visa. Just like an applicant for a visitor’s visa, the standards for eligibility of a domestic partner are high.

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