Wednesday, August 7, 2019

Why Not to Consider Getting a Tourist Visa for your Pinay GF

Some people think that getting a tourist visa for their pinay GF/potential wife would expedite the visa process for their significant others.  However, on the contrary, it creates greater problems by creating the presumption of marriage fraud.  This is not a new concept, but appears to be little known to a lot of people.

Under the Old Rules

Under the old Foreign Affairs Manual (FAM), if a foreign national enters under a non-immigrant visa (e.g. tourist  visa) and marries either a US Citizen or a Lawful Permanent Resident and applies for adjustment of status within the first thirty (30) days of entry, the USCIS presumes that the foreign national misrepresented his/her intention.  Because as a rule when a foreign national applies for a non-immigrant visa, he/she represents that he/she shall not engage in conduct inconsistent with his/her visa.

The applicant may rebut this presumption, if the marriage and application for adjustment of status occurred after sixty (60) days from entry.  

Otherwise, the foreign national may be subject to removal proceedings based on the ground of marriage fraud.

Under the New Rules

Under the new FAM, the following are considered conduct inconsistent with a non-immigrant visa:


(2)  (U) Inconsistent Conduct Within 90 Days of Admission to the United States:
x x x

(b)  (U) Inconsistent Conduct:  For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an alien’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:
(i)     (U) Engaging in unauthorized employment on B1/B2 nonimmigrant status. (Note: Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E)and you should clarify an applicant's employment activities when make a 6C1 finding under the 90 day rule);
(ii)    (U) Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);
(iii)    (U) A nonimmigrant in B status, marrying a United States citizen or lawful permanent resident and taking up residence in the United States. (Note: to establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, post may take into account whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or
(iv)   (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment.  (Note: Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90 day rule; the alien must also engage in conduct inconsistent with authorized status without the benefit of such a change of status. Moreover, if an alien engages in the activities for which he/she was admitted, such as to study on a F1 visa, but also engages in unauthorized work without seeking an employment authorization document (EAD), then that is insufficient to justify a presumption of a misrepresentation.)

Better to Apply for One of the K visas

During the period that the boyfriend/girlfriend is under a Tourist Visa, he/she cannot work, and has no access to any healthcare; the latter being the riskier of all since no one knows for sure whether any health emergency may happen.  Of course if he/she has some kind of travel insurance, that may help, but most travel insurance only offers reimbursement and that means the US Citizen/LPR boyfriend is still on the hook for whatever cost may be incurred as a consequence.

On the other hand, if the US Citizen/LPR only wants to know better if they are a perfect match, then why not get a Fiance Visa and they have 90 days within which to marry.  Otherwise, if things don't work out, the foreign national can just go back to his/her country without incident or danger of being barred from any future travels to the US.

The only advantage that can be seen from using the Tourist Visa route is the initial cost to get it, which is far cheaper than the K visa.  But it has too many potential problems that it is far better to choose to take the K visa routes than to use a Tourist Visa to get your boyfriend/girlfriend.



Sunday, July 28, 2019

Prepping for the Visa Interview

If you have gone through the entire immigration process, you would know that getting the petition approved is actually the easy part; all you have to prove is 1) the relationship between the petitioner and beneficiary; and 2) the right to petition of the petitioner (U.S. Citizen or Lawful Permanent Resident).  But once your petition is approved, the next step is the bigger hurdle. You and the beneficiary/applicant has to overcome the disputable presumption that the beneficiary/applicant may become a public charge.

Under the Old Rules

My husband and I went through the immigration process in 2017.  Trump had just been newly elected and he did not then yet make any sweeping changes to the immigration process. Consequently, we migrated under the old rules where the burden of proving that the immigrant would not become a public charge rested heavily on the sponsor/petitioner.

Under the old rules, the Affidavit of Support (AOS) played a heavy part on the approval of the visa.  For as long as the sponsor's income and assets met the 125% poverty limit for the household size and state, the visa was usually approved as a matter of course.

Under the old rules, if the income was insufficient, the sponsor has to have assets that is five times the difference between the income and the 125% poverty limit. For example, for a family of three in 2017, the income has to be $25,525.00.  Since my husband was already retired, he had a very small social security income that was only about $12,000.00.  So the difference would be $13,525.00.  If an LPR were to prepare the AOS, the asset would have to be $67,625.00. Since my husband is a U.S. Citizen he only has to have assets that is three times the difference or $40,575.00. The asset has to be something that can be liquidated within a year from the immigration of the applicant/beneficiary.  So a more liquid asset like cash in the bank or investments is preferred.

Under the New Rules

Although the AOS still plays a part on the evaluation of whether the beneficiary/applicant may be a public charge, it is only a positive factor.  Under the new rules, the self-sufficiency of the applicant comes into play.  In 9 FAM (Foreign Affairs Manual) 302.8-2(B)( 2 ), the "totality of circumstances" will be under evaluation. The manual takes into consideration: (a) age; (b) health; (c) family status; (d) assets, resources, and financial status; and (e) education and skills of the APPLICANT.  It would appear that the present rules will make even family-based immigration "merit-based".  

How will this effect the immigration of your elder parents, or your wife who may have a spotty work experience or none at all? Most likely their visa application will be denied.  For older applicants that may have some health issues, proof of medical insurance or ability to pay medical expenses is required.

If in the previous guideline, the applicant's financial resources is not the main consideration for the approval of the visa, it can be a positive factor now.  So if the applicant has sufficient financial resources, then it is to the advantage of the applicant.  But as in the previous rule, the asset has to be liquid enough that it can be liquidated within a year.  If the asset includes real property, plans on how to dispose of that real property has to be in place, or if the applicant has money/investments in a foreign bank, how they will be transferred.  

Since these guidelines took effect only in 2019, its effect on the number of approved visa applications remains to be seen.

Sadly, if the visa application for your wife or significant other is negatively impacted by these guidelines, you cannot complain and say how come others were not.  Administrative rules and regulations, as this is, is prospective in character and consequently will affect only those whose visa applications were pending upon the approval of the new rules.

Disclaimer

I am a lawyer licensed at the moment, only in the Philippines. I am, however, studying for the NY bar, and on the side I read US immigration rules and regulations "for fun."  Nonetheless, I am not an authority on the matter so please do consult licensed lawyers in the U.S..  Once I am licensed I will tell you, and even then you are not my client and consequently anything I say should not be considered as an advice to you.  


  

Saturday, July 20, 2019

Best of Both Worlds (USA v. the Philippines)

I have come upon this topic and have been wrestling with it myself, of where the better place is to live in - the USA or the Philippines.  For those of you who live in the US, and enjoy the amenities of living here, I can understand how you may say that living in the US is far more superior than living in the Philippines, but there are many advantages as well to living in the Philippines.  It is of course, not to say that there are no advantages to living in the US, there are! Both have their pros and cons and deciding on which country to live in will depend entirely on what you have available to you at the time and which country offers the better option.  

Healthcare

While it may be true that there is an Affordable Care Act that you can take advantage of, the truth is there are many moving parts to this story yet.  There are legal challenges to the law presently pending, and the outcome is anybody's guess. 

More importantly, if you are thinking of bringing your wife here (and her minor children - not related to you), she usually will not qualify to avail of Medicaid because of the 5-year bar for lawful permanent residents. There are, however, exceptions given to veteran families.

If you should choose to get private health insurance for her and/or her children, the high monthly premiums, high deductibles and co-pays are something you should consider.  Unless they are generally healthy, it may not be a good idea to bring them here, because ultimately healthcare in the Philippines is far cheaper than it is over here.  Healthcare can be a great drain on your finances if she or you are chronically ill.  Even with Medicare, you still have to consider that part that will not be covered by Medicare (20%).  There are Medicare Advantage Plans but with an average of $100 a month or more, it may still be cheaper to get healthcare in the Philippines.

Although I have healthcare now, I continue to pay my very cheap (P200) monthly premiums for Philhealth as a "back-up" plan.

Also with the Affordable Care Act, if you made the poverty threshold for the Affidavit of Support for your wife (and children), you most likely won't qualify for Medicaid, your next alternative would be to be covered under Medicaid Expansion.  Before you move to a state, check if they have Medicaid Expansion, because not all states offer them.

Realistically, since you pay for everything in the Philippines, the cost of healthcare can also be heavy for someone who is older. That is why if you can retain access to some healthcare that you are entitled to in the US, it is advisable to keep them.  After all, you pay about $100 a month for Medicare which you don't use while in the Philippines. 

Work

Again, depending on which state you are in, the availability of "good" work is something to consider.  In my city of Flint, most work seems to be service crew work which I have no inclination for, and I also don't see myself doing good work in that field. I guess I am picky, but I did leave a job with "good pay" by Philippine standards (P110,000.00 a month plus allowances and bonuses) and it is not physically straining.  It is mentally straining but I always preferred that type of work.

I have found jobs outside of our city an hour of drive away.  My husband does not want me to take those jobs because: (1) they don't pay well enough to cover the cost in gas; (2) not all of them offer healthcare; and (3) it is dangerous to drive in the freeway, during the winter, for a new US driver.

I have found work as a substitute teacher; more flexible hours and I work close to home.  But when I do think of not doing work that I am most passionate about (study of the law), it does bother me big time. But I am willing to think of it as a temporary thing while I study for the bar. 

Education

The cost of education here is atrocious! I went to the state university in the Philippines for my undergraduate on P2,000 a semester of tuition.  After that, I went to law school on P20,000 a semester of tuition.  In both times I NEVER incurred any debt.  When I went to law school, I worked full-time (40 hours a week). I graduated with zero debt! Of course I had no savings though, after paying for my tuition and books.

I worry for my son and we are working hard for him to get good grades so that someday he can qualify for a scholarship.  Because if he can't qualify for one, he will have to go to the Philippines for his college education. Not going to college is NOT an option.  I believe education is important, not only for the edge in getting a job, but also in the ability to think critically to better ones self.  

I do not want my son to do service crew work or factory work for the rest of his life.  I want work that will challenge him and make him more prepared for a 21st century economy.  I cannot see that achieved without an education.




Monday, June 24, 2019

Caught Between Two Countries

I am firmly into 1.5 years of being in the U.S. I, however, am ambivalent about this place being my forever home.  I cannot imagine myself shoveling snow or mowing the lawn into my senior years. But the benefits my husband receives as a veteran with Priority 1 rating keeps me thinking this is the place to stay in the mean time. 

One thing that disappointed me the most is the public education system here in the U.S.  I do not know if it has to do with the training of teachers, the limited resources, or just the attitude, but it is wanting in so many ways.  Maybe it is the school district that we are presently in that does not appear to take the state standard seriously, or it is the teacher herself who does not have enough commitment to her profession, but I find that the school system is detrimental to my son.  In his first school here in the U.S. (kindergarten level), he finished in the honor roll.  After taking him from the regular public school to a Montessori one, he has so far degenerated that his reading skill was only at 1.5 grade level after the end of the first grade; and that in spite all the effort that my husband and I have done to teach him ourselves.  If it were not that my son is an only child, I would seriously consider doing home schooling. But I want him to have opportunities to socialize, and I could not get that with homeschooling.

On the other hand, I admit I also want some time-off for myself. If he was home schooled he would be all over me at home and I want to be able to study more. When I was working, whenever the teacher said he needed help, I would pay a tutor to do it.  These days I feel I am ill-equipped to teach my own child, partly because I am too nice to him when I should push him a little bit more.


The truth is, being here in the U.S., is like starting over again without the benefit of all my past legal experience. Unlike in the Philippines, with my experience, I am more likely to find job at a shorter amount of time than I would over here.

I computed my salary in the Philippines vis-à-vis the hourly rate here.  Although my hourly rate there would just be equal to the proposed minimum wage here, the truth is, there is no mandated minimum wage such that I could at least enjoy my previous pay.  The short of it is, it is hard to even get minimum wage if your background is from another country even if it were extensive.  On top of that, with my pre-existing disease it is possible that I will be paying a much higher insurance rate than if I were not diagnosed with the big C, even on remission.

As a side note, I am, however, preparing for the NY bar.  If I pass the bar, I can potentially work outside of Michigan in a state that accepts UBE (Uniform Bar Exam) like Illinois.  I can also apply to practice in a Federal Court, no matter what state I am licensed.





Tuesday, April 9, 2019

Can a Foreigner Own Real Property in the Philippines?

Believe me, the question is not answerable by yes or no, since I intentionally worded the title to cover two types of properties that may or may not be owned by a foreigner (not including a natural-born citizen of the Philippines who lost his/her citizenship by naturalization in a foreign country but later reacquired the same through the Dual Citizenship law). For foreign nationals the answer to this question is not a hard and fast rule.

Understanding What is Considered Real Property

Under the Philippine Civil Code, real property includes not only the land but all the accessions rooted to it, i.e. buildings, trees and their crops.  Consequently, a foreigner may not be able to own the land, they can however own the building (and condo units in it) because the Philippine Constitution specifically prohibits ownership of the land by foreign nationals.

Ownership of Condominium Units

When I used to work in a government office, this scenario became even more significant by an American national who came to our office to complain about Philippine government employees who he says refused to act on his complaints regarding a condominium unit he bought.  Well, it wasn't my personal case, but it was the case of one of my investigators.  Since everyone at the office knew I am married to a foreigner, and since he is my staff anyway, I conducted the interview.  To make a long story short, during the course of the interview, I learned of a significant flaw in his case.  He bought the condominium unit and put it under the name of his significant other (not his wife).  Now that is wrong in so many levels, one of which is that on paper he is NOT the OWNER.  Consequently, he cannot execute acts of ownership on the property, like complaining on the substandard materials used on "his property".  I do not even understand why he did not put it under his name, when he could have put it UNDER his NAME all along.  We are talking of a condominium unit after all, NOT land! Consequently, there should have been no legal deterrent to his full ownership of the condominium unit.  Even on matters of succession, he would have to make a case in court to show he is actually the owner of the condominium unit and not his "significant other."

Foreigners Cannot Own Land Even By Succession

Laws are presumed to be consistent with existing laws including the Constitution.  Thus, although the rules on succession may provide that the spouse (who may be a foreign national) would inherit property (including land) from his spouse (Filipino), it cannot inherit in a manner such that he/she (a Foreign national) would have title to the land.  At most, what would happen is that the land may be sold to a Filipino and the proceeds from the sale shall constitute the inheritance of the foreign national. 

Wednesday, March 6, 2019

Getting Used to the New Normal

Those who know me personally, and not just from this blog, know that I am undergoing cancer treatment.  It is unfortunately Stage 3A Breast Cancer; advanced but not too advanced yet that I feel hopeless.  Although I must admit some days I think of my mortality and wonder how all these planning about the future is futile if later on they find out it had metastasized to another body part, i.e. they see five lesions in my liver that may be benign but also may be cancer but at this point it is too small to know for sure if they are or aren't cancer.  So honestly, I have that lingering thought of my mortality sometimes.

I am turning 48 soon, in less than a month now. I almost always plan 10-year intervals of my life.  My first few years in the U.S. I planned to take the NY bar and take-up my Masters of Law, hopefully, if God is willing in a reputable law school.  I don't claim to have great grades in Law School but I have excellent work experience. I think most of the heads of agencies I have worked for, know me by name. The last time I asked for referral letters, I got really heart-warming praises from my last boss and even from previous bosses.

On the other hand, work or work-related efforts and responses have been pretty dicey.  Since my experience is very much specialized (government corruption) and difficult to cross-over to private law firm work (i.e. personal injury and family law) I have had great difficulty finding work.  Not that I have made a lot of effort. In fact I have not made too much effort, because I know finding work right now will be next to impossible with my cancer diagnosis and treatment plan.  I go to chemo now once a week for twelve weeks.  I know no employer will take me with that treatment plan.  Nonetheless, when I first started looking for a job, before my final diagnosis, I did get two requests for interviews, which I declined after I knew for sure I had a far more advanced cancer than I thought.

So I had started thinking about what I truly wanted to do with my life.  And frankly, I have started to think I want a less restrictive life than a "JOB."  I am thinking that this time of lull may be what I need to look at more freelancing work, or building a more professional blog on a different platform.  I am also thinking of shoring up on studying aspects of law that may be more practical for someone like me who wants to practice in both the U.S. and the Philippines, topics like Elder Law, Social Security, Veterans Affair, Trust and Estates, U.S. Immigration, etc.

I am just thinking out loud of course. On the Philippine side I am thinking on shoring-up on more studying on Property and Philippine Immigration.

What do you think? Good Idea?


Wednesday, January 16, 2019

Advocating Your Healthcare

During my husband's last health crisis in the Philippines, I have come to realize how it is incredibly important for a foreigner to have someone advocate for their healthcare.  Let me explain.

When my husband was bedridden for awhile because of his back pain (spondylosis) and after his initial hospitalization, we contacted the Veterans Affair in Manila at the end of October 2015.  He was given oxycodone to manage his pain.  However, one of the significant side effect of oxycodone is constipation.  So you can imagine how difficult it was for my husband to manage constipation when he could barely walk to the bathroom.  I cannot tell you how difficult that time was for me (as a caregiver) and for my husband as a patient.  We requested the VA in Manila several times for valium which my husband knows to be effective for him in previous bouts of back problems and does not have the same side effects.  I called VA Manila constantly, asking the primary care doctor to either refer us to a back specialist OR give us a Valium prescription.  By the end of November 2015, I still did not hear even a bleep from the VA.  Upset, angry and at the verge of a meltdown, I dug deep into my "lawyer" mode, and brought my disabled husband in a wheelchair to the VA even without an appointment.  I wrote a long letter to the VA director and although we had no appointment I demanded to speak to either our primary care doctor OR to a patient advocate.  The staff at the reception/lobby at the VA was ready to dismiss me as just another Pinay, but I look them in the eye, spoke fluent English, and told them I was not leaving until I spoke to either our primary care doctor or to a patient advocate.  Once I spoke to the patient advocate, I told him in no uncertain terms, that if the primary doctor doesn't do anything to help my husband over a clearly service-connected disability, I will have his medical license revoked for negligence.  To make a long story short, we changed primary doctors then and there and the new primary doctor scheduled us with a spine doctor in less than a week.

As a foreigner, it is difficult sometimes to be taken seriously in a foreign land.  Your "loud" "cantankerous" manner can be viewed as something that  most foreigners are prone towards and the average Pinoy can view it as menacing.  Most pinoys may just ignore you or report you to the Bureau of Immigration as an undesirable alien. But it helps when you do have someone who can advocate for you who is a Pinoy and not necessarily a laywer.

Saturday, January 12, 2019

U.S. Public Education System vs. Philippine Private Education System

First, I would like to make a caveat that I am making a comparison between the U.S. public education system vs. the Philippine private education system, which are two educational systems my son has been exposed to.  The Philippine public education system, with the exception of the well-known science high schools like Philippine Science High School, Manila Science High School and Quezon City Science High Schools, is something I would not go into evaluating since I myself have not been exposed to them.

Philippine Private Schools

Depending on the private school your child is enrolled in, some schools like Ateneo and the Katipunan-schools do try their best to maintain a level of excellence they can be proud of.  They are above average, so you get a lot of feedback from them.  My son went to John Dewey School (in Quezon City), which is  a progressive school with a fairly expensive yearly tuition ($2,000 a year).  I get a lot of feedback from the teachers on what my son needed to work on and what he is good at.  I think it is absolutely important that more than just making sure a child improves on something, they likewise need to provide positive feedback on what they are doing right.  So I got that from my son's private school education in the Philippines.  Since I was working 40 hours a week at the time, I honestly did not have a lot of time to tutor my own son.  Even his nanny could not provide the tutoring he needed. So on top of his regular school tuition, I paid a tutor to help him meet his school goals.  I would say I paid roughly an additional P2,000 a week for the tutor.

What I also particularly liked about my son's school was that it taught Singapore Math and Mandarin for the higher elementary grades.


U.S. Public School System

Having been here for a year, I would say first the quality is dependent on the district, after that that it depends on the level of commitment of the teacher.  I learned that the hard way because when we came in on the middle of the school year and we were forced to enroll my son in a school outside our district since ours was full, it turned out that it was a better choice because the teacher he was with on the first year (kindergarten) was excellent in communicating to us first what the expectation was, and second where my son was in that expectation.  Since I am not working at present, I am able to supplement what the school was doing.

The teacher this year is just dismal.  Since we moved to a Montessori setting (with no homework), I had no idea what the standard was for my son's first grade education.  On top of it, the teacher is fairly new into the school system and thinks that "grading" is just a matter of pass or fail without even communicating first what is expected of the student.  There are no benchmarks as to what is supposed to be covered for first grade reading, writing, science, etc. and I have found that I have had to supplement a lot of what my son is not learning in school.

The long and short of it, in either settings, the level of learning a child learns is wholly dependent on the parent.  No teacher or school system is more committed to seeing a child learn more than their parents.