Section 245(i)

I received a flurry of e-mails on my posting about the 3/10 year bar.

Many commiserate with poor Procopio, who was denied his immigrant visa. One reader asked if there was a way Procopio could have remained in the United States and, instead, had his application processed there.

Sure, there was- if Procopio was eligible for it. It’s found in Section 245(i) of the Immigration and Nationality Act (INA).

Normally, an alien who has an approved immigrant visa petition and whose visa number is available, and is present in the United States may apply- if eligible- for a “Green Card” without leaving the country, through a process called “adjustment of status.”

With “adjustment of status,” the alien doesn’t have to go back to his home country and apply for the immigrant visa at the U.S. Embassy.

But, first, the alien has to be eligible for “adjustment of status.” In general, this means, he must have maintained a valid non-immigrant status in the United States and have not engaged in unauthorized employment.

What if the alien- like Procopio- isn’t qualified for “adjustment of status” because he became “unlawfully present” or to use a familiar term, “TNT”?

That’s when Section 245(i) of INA comes in. It allows the alien, otherwise ineligible, to adjust status in the United States.

To be eligible for Section 245(i), the alien must be the beneficiary of one of the following:

(1) A family petition or employment-based petition that was filed on or before January 14, 1998;

(2) Eligible under the Legal Immigration and Family Equity Act of 2000 (Life Act). This law extended the cutoff date for eligibility to April 30, 2001. To qualify, the alien must have been physically present in the U.S. on December 21, 2000, if his application or petition was filed after January 14, 1998 but on or before April 30, 2001.

In order to benefit from the provision of Section 245(i), the alien must pay a penalty fee of $1,000 in addition to the basic fee for an adjustment of status application.

Petition for parent by a U.S. citizen

My posting, re: Family-based petitions, has been generating a lot of queries from “kababayans.” Some sent their queries by e-mail. Some called me by telephone.

Well, it’s easy to understand why. It’s the most common sponsorship process for many Filipinos- for those who are here, as well as for those back in our country.

The sad part is, with the exception of petitions for immediate relatives, (i.e., petition for spouses, children, and parents by U.S. citizens), most petitions in this class for Philippine natives suffer from heavy visa backlog.

For instance, based on the Visa Bulletin for March 2007, a petition for unmarried sons and daughters by U.S. citizens has a visa available only for those filed back on 22 January 1992 and earlier dates; married sons and daughters, 01 September 1990; and brothers and sisters, 01 September 1984.

So, beneficiaries of these petitions would have to wait for a long time for visa availability.

Now, here’s a query sent via e-mail:

“I’ve been here in the U.S. for over 15 years, but wala pa ring “papel.” I’ve got three kids born here. The eldest is 12. Can I get sponsored by one of them since they’re U.S. Citizens?”

The answer is yes. He or she can be petitioned by one of his or her kids when one of them becomes 21 years of age.

Why? The law requires that a parent may be petitioned by a U.S. citizen, if the latter is at least 21 years of age.

“Children” and “sons and daughters”

A reader of my blog fired off his e-mail after reading my recent posting, re: Family-based petitions. In his e-mail, he asked the following:

(1) Doesn’t the word “children” include “sons and daughters”?
(2) What’s the distinction?

The reader has a good point. He has a keen eye for details.

However, there’s more meaning to what ordinary words normally convey when they are used in statutes. In immigration law, as in any field of law, ordinary words that are used acquire a technical meaning.

Simply put, the law provides a special meaning to those words based on the person’s civil status and age. Here’s how immigration law gives meaning to the words “children” and “sons and daughters”:

“Children” are those who are (1) unmarried and (2) under 21 years of age.

Persons who don’t qualify as “children” ipso facto become either “sons” or “daughters.” The disqualification could be because of marriage or being 21 years of age or over- or both.

Family-based petitions

Can I petition for my cousin, nephew, and niece? What about my grandmother and grandfather? These are the frequently asked questions from clients who want to petition for their relatives.

Uncle Sam has always been eager to welcome everyone and unite all relatives, but the problem is, there are limited seats on board.

Who are the eligible relatives? The answer depends on the immigration status of the petitioner.

Under current immigration law, a United States citizen can petition only the following relatives:

(1) Spouse and children (as immediate relatives);
(2) Parents of an adult citizen (as immediate relatives);
(3) Unmarried sons and daughters (first preference);
(4) Married sons and daughters (third preference); and
(5) Brothers and sisters of an adult citizen (fourth preference).

A U.S. permanent resident (“Green Card holder”) can petition only the following relatives under the second preference (2A & 2B):

(1) Spouse and children (2A); and
(2) Unmarried sons and daughters (2B).

So, only the above listed relatives can be petitioned by either a U.S. citizen or permanent resident. Sadly, others are excluded.

3/10 year bar

Consider the following scenario:

Procopio has a pending immigrant petition by his father, a U.S. permanent resident (“Green Card holder”). Having earlier obtained a visitor’s visa, Procopio came to New York City.

Procopio, a bachelor, was awestruck by New York City. He enjoyed the sight and sound of the city - with its dizzying skyscrapers. He was allured by tall and curvaceous models, stripped to their bare essentials, at Manhattan’s Fashion Avenue. He was dazzled by the rich and famous at Fifth Avenue row. And was bewildered by the hustle and bustle of a city that doesn’t sleep.

Alas! He forgot, though, that his temporary authorized stay, as a visitor, had lapsed. In short, he became “OOS” (out of status) and “unlawfully present” in the United States.

A year later, Procopio went home to Manila.

Another year past, his visa number on his father’s immigrant petition was up; thus, he was called for his visa interview. To his surprise, Procopio was denied his immigrant visa. Reason: 3/10 year bar.

So what’s the 3/10 year bar?

It’s an immigration rule that says, an alien who is unlawfully present in the United States for more than 180 days but less than one year, and who voluntarily leaves the country is ineligible for admission or reentry to the U.S. for three years. Similarly, an alien who is unlawfully present for one year or more is inadmissible for ten years.

3/10 year bar. It’s a harsh provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. And it’s designed to curb illegal immigration in the United States.

Asylum: Persecution, not prosecution

I recently received an overseas call from a friend back in law school in Manila. He was able to trace me when he got hold of a copy of my recently published book, “A Guide to U.S. Visas for Filipino Professionals.”

He had a story to tell. He’s presently employed in the government and got involved in – you know what? The on-going “craze” back in our country- what else, corruption!

The case is pending investigation.

He’s considering running away from the long arm of the law. He wants to run to the warm embrace of Lady Liberty on whose statue is written the following inscription:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me.
I lift my lamp beside the golden door.”

In short, my friend wants to seek for asylum in the United States.

Of course, my right off the bat reply was, asylum in the United States is not designed to give protection for someone’s criminal conduct. The asylum law gives protection only to those who have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Remember: asylum is only for those running away from persecution, not prosecution.

No bigamy

Do you remember Virginia (not her real name, though)? She’s our Blog reader whose husband came to New York and obtained a divorce judgment.

Despite the lapse of many years, Virginia hasn’t recovered from her marital “nightmare.” She still thinks of her husband. She recently e-mailed me and asked whether she can file in the Philippines a case of bigamy against her husband.

No, Virginia can’t bring a bigamy case against her husband. Bigamy can’t be filed in the Philippines because the crime, if any was committed, took place outside the territorial jurisdiction of the Philippines.

While it’s true that her husband was a Filipino citizen when he contracted the second marriage in New York, and was subject to our civil laws relating to “family rights and duties or to the status, condition and legal capacity of persons” - the matter of his second marriage is beyond the reach of Philippine criminal statutes- even assuming that it’s bigamous. Under the “territoriality rule,” only those crimes committed within the Philippines are subject to our penal laws.

Poor Virginia, she can’t proceed criminally against her husband.

Most corrupt country in Asia

A “kababayan” Blog reader e-mailed me his reaction to my recent posting, re: “Diaspora.”

The reader said that the reason there are few job-generating investments in the Philippines could be the result of a Hong Kong-based Political and Economic Risk Consultancy (PERC) survey. The PERC survey showed that the Philippines is perceived by foreign businessmen as the most corrupt among 13 countries and territories across Asia.

In a grading system with zero as the best possible score and 10 the worst, the Philippines got 9.40, worsening sharply from its grade of 7.80 last year. Indonesia had been deemed Asia’s most corrupt country in 2006.

The reader said that it comes as no surprise that every Juan, Kulas, and Pedro in our country is dejected and wants to leave, rather than stay put. Everyone’s patience and hope seem to be wearing thin.

The reader raised a good point. I agree. And that’s the unvarnished truth - no matter how one cuts it.

So, what’s happening to our country? Is the Philippines hell bent to keeping its perch at the top of the dung heap? I think these questions are in the mind of every concerned Filipino.

I’ve been away from our beloved country for more than two decades. I’ve come to embrace the United States as my adopted country. But despite all the good that America offers, I still cling to my Filipino roots and find time to look back to our beloved Philippines. Thus, my concern as to how our country is doing.

After reading a number of articles on the PERC survey about the Philippines, I just shook my head in disbelief.

Quo Vadis, Philippines?

F and M?

F and M are not someone’s initials, or have something to do with “feminine” and “masculine.”

F and M - as will be discussed here - refer to the two types of visas that individuals may seek and apply for, to enter and study in the United States.

Some prospective foreign students desirous to obtain these visas are thrown off by confusing information.

Well, let me shed some light where others have sown confusion:

F visa is issued to a bona fide student qualified to pursue a full course of study at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in a language training program in the United States.

M visa, on the other hand, is issued to a bona fide student qualified to pursue a full course of study at an established vocational or other recognized nonacademic institution (other than in a language training program) in the United States.

Thus, the basic distinction is - F visa is for a student of an academic institution, while M visa is for a student of a vocational or nonacademic institution.

In both visa categories, the law requires that the school or institution must be approved by the United States Citizenship and Immigration Services (USCIS).

An approved school or institution can issue a Certificate of Eligibility to a foreign student who applies for enrollment. The certificate comes in two types: Form I-120AB (for F student) or Form I-120MN (for M student).

A student outside the U.S. needs to submit the Form I-120 with his or her visa application at the U.S. Embassy. For a student already inside the U.S. (who, of course, doesn’t need the visa), he or she submits the form with the application (for a change of status) with the USCIS.

Diaspora

Yes, diaspora, originally to mean “the settling of scattered colonies of Jews outside Palestine after the Babylonian exile.”

But that’s not the point I’m trying to put across. I’m not about to discuss Biblical history. Instead, I refer to diaspora in its contemporary usage: the breaking up and scattering of a people; or to be exact in our context- the migration of a people.

In its recent editorial, a Manila-based paper talked about the dearth of job-generating investments in the Philippines and its not-so-rosy economy that lead to the exodus of many Filipinos in search of better paying jobs abroad.

The Manila-based paper said,” As economic experts have pointed out, however, the country isn’t attracting enough job-generating investments. The dearth of such investments as well as depressingly low salaries in this country are driving overseas a steady stream of Filipinos, including teachers, health professionals and skilled workers in specialized fields such as aviation. Over eight million Filipinos are now working abroad, most of them away from their families.”

Of course, this situation in our country is nothing new. It has been going on for years.

In fact, it echoes what I’ve always thought: our economy’s sorry state is the root of the diaspora.

To borrow the phrase used by Bill Clinton in his 1992 presidential campaign against George Bush: “It’s the economy, stupid.”

Thus, as I have pointed out in my book, A Guide to U.S. Visas for Filipino Professionals,* “the ever rising unemployment situation in our country and the floundering economy leave many professionals cankered with discontent. For them, the only way out from the quagmire is to look for employment opportunities abroad where jobs abound and wages are higher- especially so that wages in overseas jobs are pegged on the U.S. dollars. With the exchange rate of the U.S. dollar against the Philippine peso at an all time high, many professionals consider overseas jobs as the mythical pot of gold.”

So, unless a miracle springs from the air that would put our country’s economy into the right track, there would be no end in sight for the diaspora.
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*Copies of the book are available at Conanan Bookstore, 2019 C.M. Recto Avenue, Manila, Philippines. Tel. (02)735-5582, Fax (02)735-5586