One mistake that could result in permanent family separation

One of the more promising provisions of the proposed immigration reform law in the United States is its attempt to improve family-sponsored petitions by eliminating current visa backlogs. Filipino nationals, who happen to be adult children of US citizens currently wait almost 20 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 only to receive a denial from the consular officer.

Why are some petitions denied despite the lengthy wait? One reason is the change in marital status of the beneficiary.

Corazon, a green card holder, petitioned her three adult children. At the time, the children were unmarried although the youngest daughter, Claire, had a child from a relationship 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 US 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 a green card holder under the second preference. She did this because under the current immigration system, petitions by green card holders for their Filipino national adult children are processed faster than petitions by US citizens.

As expected, the petitions filed by Corazon were processed 10 years from the 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 the marriage was not going to be registered. It turned out the marriage was duly registered with the civil registrar and was recorded with the National Statistics Office.

Corazon was dismayed by this turn of events. Would it 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 US Citizen?

Updating visa petitions

Change in marital status of the beneficiary is particularly critical if the petitioner filed as a green card holder. This is the sad fact because green card holders are only allowed, under the current laws, to petition “unmarried” children. No matter how long the petition has been pending, such a change in status would result in the automatic termination of the petition.

US 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.

Let us examine what happened to Claire.  Although Corazon, her petitioner, eventually became a US citizen, Claire’s marriage occurred before the naturalization of her mother. Had she waited until her mother became a naturalized citizen 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 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 US to better one’s future, or putting one’s life on hold, while the parent tries to become a naturalized citizen. 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 this broken immigration system is reformed to truly reflect this nation’s ideals.

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Atty. Lourdes Tancinco may be reached at [email protected] or at (02)7211963 or visit her website at www.tancinco.com)