A TALE OF TWO FILIPINO FAMILY ADJUSTMENTS

A TALE OF TWO FILIPINO FAMILY ADJUSTMENTS

By:

Roman P. Mosqueda, B.S., LL. B., LL. M., S.J.D.


On January 22, 2010, starting at 7:15 a.m., two Filipino families were interviewed by two District Adjudication Officers (DAOs) of the Los Angeles District Office of the U.S. Citizenship and Immigration Services at 300 N. Los Angeles St., Los Angeles, CA. 90012, Room 4012.

This Author represents and personally attended the interviews of both families whose identities are withheld to protect their privacy and safeguard confidentiality.

The first Filipino family interviewed presented issues: of derivative status, Child Protection Act, and the Patriot Act, with Los Angeles DAO Sinocruz requiring the derivative daughter on student (F-1) status of a principal beneficiary mother petitioned by her U.S.-citizen brother to obtain police report (clearance) from the Torrance Police Department, as well as the withdrawal of adjustment applications due to consular processing of the immigrant visas of the principal beneficiary and other children.

The second Filipino family interviewed presented issues: of no availability of immigrant visas for third-preference employment-based (EB-3) petitions (Form I-140s) for the Philippines (regressed to August 1, 2002 as of January 2010 Visa Bulletin), unauthorized employment by the husband not grandfathered under section 245(i) of the Immigration and Nationality Act (Act), grant of 180 days of unlawful presence to EB-3 beneficiary under section 245(k) of the INA, and no unlawful presence of minor children seeking adjustment of status to lawful permanent residence.

First Filipino Family
Interviewed : Issues
and Resolutions:

The main beneficiary of the first Filipino family interviewed is a sister of a U.S. citizen brother residing in Chula Vista, California. The priority date of the Petition for Alien Relative (F-4) Form I-130 was March 31, 1986.

The derivatives of the beneficiary are her husband, three daughters, and one son. Except for the eldest daughter who is on student (F-1) status at California State University at Long Beach, and residing in Torrance, California, the rest obtained immigrant visa through consular processing at the U.S. Embassy in Manila, Philippines.

The second daughter had turned twenty-one years of age and had aged-out under Section 3 of the Child Status Protection Act (CSPA) of 2002, PL 107-208, 116 Stat. 927, but was granted an immigration visa under the Patriot Act.

Indeed, section 424 of the Patriot Act (PL 107-56, 115 Stat. 272), 22 C.F.R. § 42.32 (d)(9), provides a child beneficiary under the age of 21 of a petition filed on or behalf September 11, 2001, with an automatic forty-five (45)-day extention.

Thus, the U.S. Cousul in Manila considered the second daughter as remaining in the status of a “child” for an additional period of 45 days after her 21st birthday, and granted her an immigrant visa.

Adjustment Of Status
Interview For Daughter
On F-1 Status:

At the adjustment interview on January 22, 2010, Los Angeles District Adjudication Officer (DAO) Sinocruz verified the identity and eligibility of the derivative daughter on student status.

She was required to obtain a police (clearance) report from the Torrance Police Department, which she did and was submitted to DAO Sinocruz that afternoon.

She is awaiting grant of her adjustment of status to lawful permanent residence to join the rest of her family in the same status through consular processing.

Second Filipino Family
Interviewed: Issues
And Resolutions:

The main beneficiary of the second Filipino family interviewed on January 22, 2010, is a wife who was petitioned for labor certification and as an alien worker (Form I- 140) on November 2, 2007, by a hotel in Los Angeles County.

Her derivatives are her husband, two minor sons, and a daughter. But since there are no immigrant visas available for third preference employment-based petitions (EB-3) for the Philippines as country of chargeability for the January 15, 2004 priority date, per January 2010 Visa Bulletin, DAO L. Hadnot-Jacobs merely checked the identities and eligibilities for adjustment of the family members.

Indeed, the principal beneficiary who was formerly on H-1B status before she was petitioned as an alien worker, qualifies for adjustment of status under section 245(k) of the Immigration and Nationality Act, because the adjustment application was filed within 180 days from termination of her H-1B status.

The three (3) minor children are also eligible for adjustment of status, although their H-4 status were not extended, because minors under 18 years of age do not incur unlawful presence.

The problem is with the derivative husband, who was formerly also on H-1B, then changed to H-4 status, and worked without employment authorization on H-4 status. And since he was not previously petitioned by family or employer on or before April 30, 2001, he is not grandfathered under Section 245(i) of the Act.

He still is a derivative of his wife, who would be granted lawful permanent residence, but cannot adjust in the United States. He may be issued an immigrant visa by consular processing at the U.S. Embassy in Manila, Philippines, if he is able to obtain a waiver for unlawful presence by proving extreme hardship to a permanent resident wife, under section 212(a)(9)(B)(v) of the Act.

Thus, the tale of two Filipino family adjustments is not over. It has just begun.


*****


(The Author, Roman P. Mosqueda, has practiced immigration law in the United States for over 15 years, with the Service (USCIS), Immigration Court, Board of Immigration Appeals, and Federal Circuit Court of Appeals.

This Article does not constitute legal advice or a legal opinion on any specific facts or circumstances. Its contents are intended as general information only. The reader is urged to consult with his/her own attorney concerning his/her specific legal questions.)