Mother’s illness hinders opportunity to immigrate

The current immigration system in the United States is broken. Family reunification is not realized for certain visa applicants. Many families remain separated for many years. The lengthy visa processing of petitions for adult children raises serious concern when a petitioner’s health deteriorates. Let’s examine the case of Carla who sent me an e-mail about her mother’s present situation. She writes:

“My mom, an American citizen, petitioned me and my brother to come to the US. Our immigration papers have already come in and we have paid the affidavit of support fees and visa processing fees. Now they want us to fill out a DS-230 form. I have concerns regarding Part 2 of the form, about the petitioner’s name and current residence.”

“My mom has had to stay in the Philippines for a while now, because of a series of strokes. She cannot travel on long flights back to the US. She is on tube feeding and very fragile. She’s in physical therapy and home care. How do we fill out Part 2, and will this have an effect on our visas?”

The form referred to in this letter is the biographic data form. The information that is being requested is the exact address of where the petitioner currently resides. If the mother will no longer be able to travel to the US, will the children still be able to obtain their immigrant visas?

An important requirement for the immigrant visa to be issued is that the petitioner should have a US “domicile.” The term domicile is defined under the relevant statute as the place where the sponsor has a residence in the US with the “intention” to maintain that residence for the foreseeable future. A US citizen may be residing in the Philippines while waiting for the petition of the children to be processed without giving up the US domicile. The residence abroad must be temporary in nature only and the principal residence should still be in the US.

How does one prove that  the mother’s domicile is in the US despite her residence in the Philippines?

Temporary home abroad

As mentioned above, the petitioner must demonstrate that the stay in the Philippines is only temporary in nature. This can be proven if the petitioner can show that she or he maintains ties to the US, such as by voting, paying income taxes, maintaining property or bank account.

An extended stay in the Philippines by a US citizen-petitioner may still be considered a temporary stay especially for students, teachers or contract workers whose jobs are  temporary in nature. Aside from proving the temporary nature of the activity in the Philippines, one must also demonstrate the “intent” to return to the US.

The typical scenario for one whose petitioner is residing in the Philippines is for the petitioner to travel back to the US when the visa petition’s priority date becomes current. It is not necessary that the petitioner return to the US ahead of the petitioned relative. The petitioner may travel at the same time with the relative and show proof that she or he intends to establish US  residence as of the date the petitioned relative enters the country.

While the petitioner may travel ahead of the petitioned relative, the reverse scenario is not permissible. The petitioned relative may not travel to the US ahead of the petitioner.

Ground for visa denial

Carla’s petition by her mother falls under the first preference family-based category, which is the “petition by a US citizen on behalf of unmarried adult children.”

For Filipino nationals, the petitions being processed under this category are those petitions that were filed in 1999. In reality,  with the present immigration system, there is approximately 15 to 16 years of waiting time before an adult unmarried child of a US citizen may be issued the visa.  Carla’s mother must have the intent to reestablish the US domicile and must travel back to the US with Carla for the immigrant visa to be issued.

Considering the length of time it took for the priority date of the petition to become current, Carla’s mother suffered a stroke and remained seriously ill. She obviously cannot travel.  Under these circumstances, she can no longer reestablish US domicile. The consular officer at the US Embassy will not issue the immigrant visas of Carla and his brother for failure to prove petitioner’s US domicile.

Many options, one mom

For those who are beneficiaries of petitions, the anticipation of immigrating to the US to join relatives may be a lifetime dream.

When the petitioner is suffering from a serious illness, this may delay the fulfillment of that dream. There are those who I have witnessed, who were misguided and forced their parents to return the US to meet the domicile requirement, risking the health of their parents. For Carla, I suggest that she answers truthfully the application for visa and indicate that her mother is a resident of the Philippines. Her mother needs care and love during these critical times. It will not all be worth it to risk the life of a mother who had sacrificed much to be able to support and raise her children. Giving up on the family immigrant visa petition does not mean abandoning the American Dream. There are many other legal ways of immigrating other than through family-based petition. But, we only have one mom, one lifetime opportunity to love and cherish her, while we can. Happy Mother’s Day!

***

Atty. Lourdes Tancinco may be reached at [email protected] or at 8877177 or 7211963 or visit her website at www.tancinco.com