Hi Atty. Lou,
I am a green card holder and I obtained my resident status through the petition filed by my employer. Prior to receiving my card, my wife has been living in the United States with an expired visitor’s visa. She was not able to adjust her status with me.
We have two children. One child is in the Philippines and the other child is here with us in the US. Since the economic crisis has adversely affected me I have postponed filing a petition for green card for my wife and my child in the Philippines. Now that I am facing the heavy burden of raising a family on one income we have contemplated on deciding to fly her back to the Philippines together with our son. The consequences of this decision would be. 1] She will be barred for 10 years because of over staying her visitors visa. 2] our U.S. born son will have to stay the Philippines, as I would no longer be able to support them on my own.
If my wife is barred for 10 years, how long can I petition her again? Is it after the 10 year ban which will be roughly until year 2020, or I can initiate the petition while waiting for the 10 year ban to lapsed. How long is the normal waiting time for the petition to come out, since I might have already become a Naturalized Citizen within those 10 years. If my 11 year old daughter’s petition gets approved, how long does she need to start staying in the U.S. Since her mother will be out for 10 years, is there a way for her to stay in the Philippines without losing her LPR status.
Is the CIP-Asap bill worth waiting for in our case? How does it apply to us?
Concerned Father
Dear Concerned Father,
There are many Filipino immigrants right now who are contemplating on returning to the Philippines because of the economic crisis. Many have lost their jobs and their homes. In your case, you are taking the practical route although it will mean separation from your wife and children.
You are right in saying that your wife shall be barred from re-entering the US for ten years. This is a result of her staying in the US in unlawful presence for more than one year. This ten-year bar shall apply when she is applying for an immigrant visa and will re-enter the US. In the meantime, it will not prevent you from filing a petition for her as the spouse of a green card holder petitioner. Hence, you may start the petitioning process for her and your other child (born in the Philippines) even if they are residing abroad. Once these petitions are approved, they will have a priority date under the second preference category. The waiting time under the second preference (subcategory “a”) is approximately five to six years.
As soon as you become a naturalized US citizen, you may upgrade the approved petitions filed and visas will be available to your wife and child as your immediate relatives. During the application for immigrant visa, your wife will be facing the 10-year bar. It is at this point that you may file a Waiver of Inadmissibility in order that the grounds of inadmissibility that prevents her from re-entering the US may be waived. The adjudication of this application for waiver is discretionary on the part of the immigration officer. Your wife has to prove a very high standard of “exceptional hardship” to you as her US citizen spouse if the application is not approved. If this waiver is approved your wife may re-enter before the 10 year period. In the event that it is denied, she will not be able to re-enter until the lapse of ten years counted from the time she departed from the US.
As far as the Comprehensive Immigration Reform for America’s Security and Protection (CIR-ASAP) bill, it will have to go through a tough congressional process before it becomes law. It will be speculative to rely on this bill. There is a proposed legalization program for the undocumented individuals if this bill is passed into law.
I hope that this information is helpful. Good luck.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com)
