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Mr. Roa wrote a regular column, "Visa Q & As", that appeared in the print and online editions of the Mindanao Current - a local paper that was published in the city of Cagayan de Oro, Philippines. Following are reprints of some of the articles - updated as needed.
In all likelihood, the immigration officer at the port of entry probably thought that your true purpose for going to the U.S. was to marry your boyfriend. Since what you had was a tourist visa, which is used only for the sole purpose of visiting the U.S. for pleasure, you did not have the correct visa.. Section212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA), as amended, provides for the inadmissibility of any immigrant who at the time of application for admission is not in possession of a valid unexpired immigrant visa or other valid entry document required by law. Hence, you were found to be inadmissible for not having the right visa.
Now it would be different if you were instead found inadmissible under Section 212 (a)(6)© of the INA. This is a separate provision that deems inadmissible any alien who by fraud or wilful misrepresentation seeks to procure a visa, other documentation or admission into the US or other benefit under immigration law. These two grounds of inadmissibility are distinct from each other. One involves fraud or misrepresentation, and being found inadmissible as a result would lead to a permanent bar. You would never be allowed to enter the U.S. again - unless you qualify for - and granted - a waiver. The other is that the applicant simply needs to obtain the correct visa.
What are your options? I have heard of instances where the immigration officer at the port of entry, even as entry was being refused, gives advice as to what to do if one wants to go to the U.S. to marry a boyfriend or girlfriend. I don’t know if this happened to you. But if marriage is the goal, you can apply for a K1 or fiancé/e visa. This is the visa for those going to the U.S. to get married to an American citizen. A nonimmigrant petition will have to be filed by the US citizen, and you must have met in person at least 2 years before the petition is filed. In certain instances, this requirement can be waived. Once the petition is approved, it is forwarded to the U.S. embassy in Manila, and you will then be called for a visa interview. If all goes well, you will be issued a K1 or fiancé/e visa, and you can use that visa to apply for entry to the U.S. You must get married within 90 days of your arrival. Understand, though, a person who enters the U.S. as a K1 must marry the K1 petitioner to get the green card. If for some reason you part ways, you have to leave the U.S. Even if you marry another U.S. citizen, you will not be able to get a green card. Or your boyfriend can come to the Philippines, and you can get married here. When your now husband gets back to the U.S., he can then file an immigrant petition (I130) for you as the wife of a U.S. citizen. Once he has a receipt for the I130, he can also file a nonimmigrant petition for you as a K3. Upon approval, you will be interviewed at the U.S. embassy in Manila for a K3 visa. It takes a while for the I130 to be approved, and the function of a K3 visa is for the visa holder to be allowed to enter the US while an immediate relative petition remains pending so that the US citizen and the alien spouse can be together while waiting for the approval of the I130. Once approved, the alien spouse can file the adjustment application to get her green card in the US. The spouses are spared from suffering further separation thru consular processing. Should the I130 be approved first, you will be getting an immigrant visa instead.
(Mr. Roa grew up in Cagayan de Oro City, where he obtained his legal education and training. He practices exclusively immigration law in the United States and is based in Arlington VA. (See www.roalaw.com for more details.) The content of this column is for general information only, does not create a lawyer-client relationship and is not meant to constitute a formal legal opinion. It may not be copied, reproduced, distributed, transmitted, sold, transferred or disposed of in any manner without the express written permission of Emeterio G. Roa III, who owns and retains all intellectual property rights over said contents.)
Your question is an interesting one. It touches on an area of immigration law that is rather complicated. Perhaps the better question is - did your American mother give, or “transmit”, American citizenship to you? And if she did, were you able to retain it? If the answer to both questions are “yes” , then you are a U.S. citizen, too, and you have no need for a “green card”. If the answer is no to at least 1 of them, and assuming she is still alive, then she should be able to file an immigrant petition for you so you can get a “green” card. I will need more information.
Let me try to explain. A person born in the U.S. is a U.S. citizen (except in a few rare situations). That’s simple enough. That is still the law, and unless the U.S. constitution is changed or amended, will continue to be the law. You might have heard or read about current efforts proposing a change in this law. But that’s all they are - proposals to change the law.
It’s when a person is born outside the U.S. where it becomes complicated. A variety of factors come into play. Were both parents US citizens? If not, who was the US citizen: the father or mother? Was the child legitimate? Did the parent or parents live in the US? When was the child born? The answer to this last question is really the most important because it tells us what version of the citizenship laws apply. Citizenship laws constantly changed over the years.
For example, the residency requirements for a U.S. citizen to be able to transmit citizenship to his or her child born abroad differ for different periods. These required that the US citizen must have lived in the U.S. for a certain number of years at certain ages. Thus, a US citizen parent must have previously lived in the US for 10 years, 5 of which after 16 years of age, to be able to transmit citizenship to a legitimate child born outside the U.S. between January 13,1941 and December 24,1952. If these conditions are met, such a child is born a U.S. citizen. But the citizenship laws in place for that period also required that for the child to retain U.S. citizenship, he or she must have two years physical presence in the U.S. between the ages of 14 and 28. Otherwise, the child loses U.S. citizenship. If both parents were US citizens and one had prior residence in the US, then there was no retention requirement.
For illegitimate children born outside the U.S. in the same period of time, the transmission and retention requirements are also different.
Another example is that for legitimate children born abroad after December 24,1952 but before November 14,1986, the citizen parent must also have lived in the U.S. for 10 years prior to the birth, but this time 5 of which can be after age 14. The age was lowered from 16. Again, if both parents were US citizens and one had prior residence in the U.S. - no retention requirement.
On October 10, 1978, the laws on retention requirements were repealed. So after that date, everyone who was born a U.S. citizen keeps U.S. citizenship whether or not he or she has ever lived in the U.S. And in 1994, a law was passed to help those who had already lost U.S. citizenship for failure to comply with the applicable retention requirements by providing that they can re-acquire U.S. citizenship by taking an oath of allegiance.
Of particular importance to those born in the Philippines, however, is the determination that prior residence or physical presence in the Philippines while it was still U.S. territory - from April 11, 1899 to July 4, 1946 - is sufficient to meet the residence or physical presence requirement prescribed by law for a U.S. citizen parent to transmit U.S. citizenship to a child born outside the U.S. This is so even though birth in the Philippines during that period was not considered to have been birth in the U.S.!
It is quite possible, therefore, that your American mother may have transmitted her citizenship to you even though she’s never been to the U.S. If she did, the next question is whether or not you retained U.S. citizenship as required. If not, you may still be able to re-acquire U.S. citizenship.
Practically all Filipinos who are now “TNTs” arrived in the US with a nonimmigrant visa. Usually, it is a B2 or tourist visa. If they are admitted into the US, the most time they are given is 6 months. If they decide to stay in the US after that, they become overstays. Once they overstay, they start to accumulate “unlawful presence” in the US. If they overstay for more than 180 days and leave the US, they will be barred from getting any kind of visa for 3 years. If they overstay their visas for more than 1 year and leave, they will be barred for 10 years!
The practical effect of these unlawful presence bars is devastating. If, for example, the visa overstay finds an employer willing to sponsor him or her for a green card, he or she will not be able to get the green card in the U.S. because of being out of status or unlawfully present. The visa overstay will have to get the visa in the US embassy in Manila. Once he or she leaves the US, though, it triggers the unlawful presence bar of 3 or 10 years.
Originally, these bars could be waived if the visa applicant can show extreme hardship to a spouse or parent who is a US citizen. The problem was that the waiver application could not be filed until you went to your home country for the visa interview. No one knew how long the wait for a decision on the waiver application was going to be. Even worse, if the waiver application was denied, then the visa overstay was stuck abroad for at least 3 and up to 10 years. Thus, the uncertainty of the process made it very challenging.
However, the unlawful presence bars do not affect Filipinos who either have US citizen spouses, or are minor unmarried children of US citizen parents. This is because they entered the US with a visa, and so as immediate relatives of US citizens, they could get their green cards in the US - without having to go home. In such cases, it did not matter how long they overstayed.
But for those who entered without inspection, or simply crossed the border illegally, the waiver is a game changer.
So US CIS really made things better in 2013 by allowing the waiver application to be filed in the US. Applicants can now wait in the US for the waiver application to be approved before leaving for their home countries to get their immigrant visas. There would be no long separation of families. And if the waiver application is denied, at least they would be here in the US and not be stuck outside the US away from their families for 3 or 10 years.
On August 29, 2016, though, the US CIS rule on waiver applications was expanded even more generously. Under this new rule, it is not only immediate relatives of US citizens who can file for a waiver application in the US. If the applicant can show extreme hardship to a spouse or parent who is either a US citizen or green-card holder, it will not matter if the basis for the underlying visa is an employment-based or family-based petition, special immigrant classification, or diversity lottery.
Going back to the Filipino visa overstay who will be sponsored by an employer, he or she can now file a waiver for the unlawful presence bars if there is a USC or green-card spouse or parent who will suffer extreme hardship. With the much longer wait for visas in the family-based category, an employment-based immigrant petition is preferable to most. And even if the visa overstay in the US has a final order of removal, he or she could still qualify for the expanded waiver. This new rule can be of great help to many Filipinos.
(Mr. Roa grew up in Cagayan de Oro City, where he obtained his legal education and training. He practices exclusively immigration law in the United States and is based in Arlington VA. (See www.roalaw.com for more details.) The content of this column is for general information
only, does not create a lawyer-client relationship and is not meant to constitute a formal legal
opinion. It may not be copied, reproduced, distributed, transmitted, sold, transferred or disposed
of in any manner without the express written permission of Emeterio G. Roa III, who owns and
retains all intellectual property rights over said contents.)
A couple of months ago, I wrote about the unprecedented forward movement of immigrant visa
availability for family-based petitions. In other words, priority dates were getting to be current at
an unheard of pace.
First, let’s see if we understand what “priority dates” are. When an immigrant petition is filed in
a category subject to quota, the date the petition is received by the government determines the
place of the prospective immigrant in the line of visa applicants. This is the priority date. Thus, if
you filed on December 2, 2010, you would be behind those who filed December 1, 2010 and
earlier. There are so many immigrant petitions filed that the line stretches back to many, many
years. For example, brothers and sisters of US citizens from the Philippines have a 22-year wait!
When visas are projected to be current in an immigrant category, the National Visa Center
(NVC) of the US Department of State will issue fee bills for the Affidavit of Support and/or visa
application for each prospective immigrant. (Form I-864, Affidavit of Support, is required in all
family-based immigrant petitions, and some employment-based petitions as well.)
In many instances, though, visas may retrogress after the fee bills have been paid. Retrogression
happens when priority dates move backward. For example, for December 2010, the priority date
was current for petitions filed on or before August 1, 2010 by lawful permanent residents (LPRs)
for their spouses (the family 2A immigrant classification). This means that visas were available
for such spouses all of December 2010.
Come January 2011, the priority date for 2A will move backward to January 1, 2008. This means
that visas will no longer be available for petitions filed after January 1, 2008. So, if you are the
spouse of an LPR and the petition was filed, say, on February 15, 2009, visas are available for
you all throughout this month because it was filed before the cut-off date of August 2010.
By this January, however, visas will no longer be available for you because your petition was
filed AFTER the cut-off date of January 1, 2008. You will have to wait until the priority date
moves forward again so that the date your petition was filed will be before the cut-off date again.
The practical effect of this is that you must finish the immigration process before the
retrogression. If you do not, then you will have to wait until your priority date becomes current
again before you can get your immigrant visa.
Unfortunately, my experience is that the process involved can take up to 6 months. When a
priority date is current, NVC will ask the petitioner to pay the fees. This can take from 2-4
weeks, depending on how quick you are able to make the payments. Once payment is made,
NVC will then require the submission of visa application forms and supporting documents. This
can take from 30 - 60 days, again depending on how fast you complete the forms and gather the
documents. Any deficiencies in the forms or documents delay the process even more as it takes
at least a couple of weeks for corrections to be made. When everything is complete, the NVC
will then schedule your appointment for an immigrant visa interview with the US embassy in
Manila - usually within 90 days. If everything is in order, your immigrant visa will be issued at
the interview. That is to say, application for an immigrant visa will be approved, and the visa and
your passport will be delivered to you in a matter of days.
Thus, the immigration process may take at least 6 months. It would not be so problematic if there
would be no movements on visa availability throughout the process. But visas retrogress, and if
they do while all these are happening, then a visa might no longer be available. NVC will usually
not schedule immigrant interviews if there is retrogression. If they do, and your priority date is
no longer current, you will not get an immigrant visa - even if the fees have already been paid!
(Mr. Roa grew up in Cagayan de Oro City, where he obtained his legal education and training.
He practices exclusively immigration law in the United States and is based in Arlington VA.
(See www.roalaw.com for more details.) The content of this column is for general information
only, does not create a lawyer-client relationship and is not meant to constitute a formal legal
opinion. It may not be copied, reproduced, distributed, transmitted, sold, transferred or disposed
of in any manner without the express written permission of Emeterio G. Roa III, who owns and
retains all intellectual property rights over said contents.)
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Emeterio G. Roa, III, Esq. is based in Arlington, VA and serves clients in and around metro Washington DC, all over the US and abroad.
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