“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.
________________________
*Copies of the book are available at Conanan Bookstore, 2019 C.M. Recto Avenue, Manila, Philippines. Tel. (02)735-5582, Fax (02)735-5586

Section 221g

My recent posting, re: “To “B,” or not to “B” has elicited queries (via e-mail) from some readers of my Blog. They claimed to have been denied visa by the U.S. Embassy, which cited as basis Section 221g of the Immigration and Nationality Act (INA).

This brings to mind the topic discussed by Adrian Cristobal in his regular column, Breakfast Table, captioned “Unvisaed Justice.” In his column, Mr. Cristobal mentioned that “Court of Appeals Justice Jose Mendoza was furious over the U.S. Embassy’s rejection of his visa application…” In rejecting Justice Mendoza’s visa application, the U.S. Embassy cited Section 221g of the INA.

Mr. Cristobal- seemingly curious on what Section 221g was all about- said “I tried to get the exact wording of Section 221g through the Internet but couldn’t find it. All I saw was a note saying that Sections 221 to 227 was repealed on June 27, 1952.”

Nope, Section 221g is still in the statute book.

So, what’s Section 221g of the INA that has always been mentioned in a mantra-like fashion?

Well, it’s one of the provisions of the Immigration and Nationality Act that give power and authority to a United States consular officer in adjudicating a visa application. As mentioned in my earlier posting, “To “B,” or not to B” the consular officer exercises a wide discretion in visa issuance. And, precisely, because Section 221g says so.

Here’s Section 221g of the Immigration and Nationality Act, in toto – with all its legal mumbo jumbo:

”(g) No visa or other documentation shall be issued to an alien if (1) it appears to the consular officer, from statements in the application, or in the papers submitted therewith, that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law, (2) the application fails to comply with the provisions of this Act, or the regulations issued thereunder, or (3) the consular officer knows or has reason to believe that such alien is ineligible to receive a visa or such other documentation under section 212, or any other provision of law: Provided, That a visa or other documentation may be issued to an alien who is within the purview of section 212(a)(4) , if such alien is otherwise entitled to receive a visa or other documentation, upon receipt of notice by the consular officer from the Attorney General of the giving of a bond or undertaking providing indemnity as in the case of aliens admitted under section 213: Provided further, That a visa may be issued to an alien defined in section 101(a)(15) (B) or (F) , if such alien is otherwise entitled to receive a visa, upon receipt of a notice by the consular officer from the Attorney General of the giving of a bond with sufficient surety in such sum and containing such conditions as the consular officer shall prescribe, to insure that at the expiration of the time for which such alien has been admitted by the Attorney General, as provided in section 214(a) , or upon failure to maintain the status under which he was admitted, or to maintain any status subsequently acquired under section 248 of the Act, such alien will depart from the United States.”

So, next time you are unceremoniously denied a visa - citing Section 221g- you know exactly what it is.

Why the long wait?

Here’s an e-mail from one reader of my blog:

“I’m a U.S. citizen. I sponsored my brother in 1995. The petition has been approved, but there’s no visa available. My brother is now 53 years old. Why the long wait? I appreciate your thoughts.

John”

That’s one frequently asked question.

Now, let’s get down to brass tacks:

A petition for a sibling is categorized under the family-based 4th preference (FB4). Under the Immigration and Nationality Act, the FB4 is given an annual worldwide quota of 65,000 visas, plus any numbers not required by the first three preferences (meaning, those unused by petitions for (1) unmarried sons and daughters of U.S. citizens, (2) spouses and children of U.S. permanent residents, and (3) married sons and daughters of U.S. citizens).

FB4 is, undoubtedly, the slowest moving preference category, especially for Philippine born beneficiaries. It has a measly 65,000 visas to be shared by all countries in the world.

As of March 2007, the backlog for this category goes all the way to 01 September 1984, for Philippine born beneficiaries.

The reason for the long wait in visa availability takes us to the familiar concept in Economics: “Supply” and “Demand.” In this category, there are more petitions that have been filed and waiting in the immigration queue than the number of visas that are issued annually. And, day in and day out, more “Green Card holders” become U.S. citizens- who file petitions for their brothers and sisters. Sadly, however, visa numbers have remained limited. In other words, there is more demand than supply. As a result, the queue gets longer and longer. It can be said - hyperbolically - that the queue has girdled the globe.

So, unless the United States government turns on the “spigot” to increase the supply of visas for FB4, Philippine-born beneficiaries in this category would have to hunker down for a good long wait.