One of the more promising provisions of the proposed immigration reform is its attempt to improve U.S. family-sponsored petitions by eliminating current visa backlogs. Filipino nationals, who happen to be adult children of U.S. citizens, currently wait almost twenty years before they are called for their visa interviews. There are also cases where the children being petitioned patiently wait for their visa’s priority date just to receive a denial from the consular officer. Why are some cases being denied for visas despite the lengthy wait? How can one prevent this from happening to their petitions?
Corazon was a green card holder when she petitioned her three adult children. At the time she filed the petition, her children were unmarried. Her youngest daughter, Claire, had a child from a relationship she had with her long time fiancé.
Five years after she petitioned her children, Corazon filed for naturalization. As soon as she took her oath as a U.S. citizen, she notified the National Visa Center of her change in status but made it clear that she would like the petitions to nevertheless be considered as petitions by green card holders under the second preference. She did this because under the current broken immigration system, petitions by green card holders for their Filipino national adult children are processed faster than petitions by U.S. citizens. Corazon did not want her children’s petitions to be delayed any further so she opted out of the automatic upgrade of the petitions.
As expected, the petitions filed by Corazon were processed after ten years from date of filing. Her two daughters were called for their visa interviews and received their green cards. The third daughter, Claire, however, was declined an interview despite the payment of her immigrant visa. The consular officer said that Claire’s petition was automatically revoked after it was discovered that she married the father of her child. Claire did not reveal this marriage to her mother because the solemnizing officer told her that this marriage was not going to be registered. It turned out that the marriage was duly registered with the civil registrar and is recorded with the National Statistics Office.
Corazon was dismayed by this turn of events. Would this have changed the position of the consular officer had she not opted out of the automatic upgrade and instead continued her petition of Claire as a U.S. Citizen? Could Claire’s visa petition be reconsidered for processing? What is the effect of marriage of an adult child on a visa petition by a U.S. citizen?
Updating Visa Petitions
Since it takes several years to process visa petitions of adult children, it is not unusual for circumstances of either the petitioner or the beneficiary, or both, to change as well. A petitioner’s immigration status may change from green card holder to U.S. citizen; a petitioner may even die in the meantime while an application is pending. Changes on beneficiary circumstances include changes in marital status, aging out, and commission of certain acts constituting offenses.
For every change mentioned, there is a corresponding consequence on the petition. For a beneficiary who turns 21 years old while the petition is pending, the visa category changes resulting in a longer wait time. The exception to this is if the Child Status Protection Act applies. In the event of the death of a petitioner, the petition dies with him/her unless the U.S Citizenship and Immigration Services grants humanitarian revalidation.
Change in marital status of the beneficiary is particularly critical if the petitioner filed as a green card holder without becoming naturalized. No matter how long the petition has been pending, such a change in status would result in the automatic termination of the petition. This is the sad fact because green card holders are only allowed, under the current laws, to petition “unmarried” children.
U.S. citizens, however, may petition children even if they are married. Here, petitions are not automatically terminated, their visa category changes to third preference, resulting in a 20 year wait instead of the typical 10, from the date of filing of the petitions before visas are actually processed.
When a petitioner becomes a naturalized U.S. citizen and notifies the National Visa Center about the change, the petition is usually placed in the appropriate visa category. The same is not true for changes in the marital status of the beneficiary. The National Visa Center is not usually notified of this fact. When the petition finally becomes ready for processing after several years of waiting, it is only at this point that the consular officer is made aware of the change, oftentimes with distressing results for both petitioner and beneficiary.
Let us examine what happened to Claire. Although Corazon, her petitioner, eventually became a U.S. citizen, Claire’s marriage occurred first before the naturalization of her mother. Had she waited until her mother naturalized before getting married, her petition would not have been terminated.
It is difficult to accept, after years of waiting, hoping and praying, that an opportunity to immigrate was lost, due simply to a change in circumstance otherwise typically undergone by most ordinary folk. People meet, fall in love, get married, it is the cycle of life. For Philippine nationals who happen to have pending petitions by parents who have as yet to become naturalized, their situation is different. As if life and finding the person you want to marry is not complicated enough, one has to grapple with the choice of either giving up the dream of immigrating to the United States to better one’s future, or putting one’s life on hold, while the parent tries to become a naturalized citizen, before one can marry the person one loves. It is this untenable situation that advocates seek to address in their proposal to do away with the visa backlogs. Let us hope reason prevails and a broken immigration system is reformed to one that truly reflects this nation’s ideals.
(Atty. Lourdes Tancinco may be reached at law@tancinco.com or at (02)721 1963 or visit her website at tancinco.weareph.com/old)
