Applying for a tourist visa when you have a pending immigrant petition
by ATTY. MIKE TEMPLO | 09/20/2008 2:43 AM
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When it comes to family-sponsored immigrant petitions, the Philippines is one of the three countries that are oversubscribed. The other two oversubscribed chargeability areas are China and Mexico. This means that submitted family-sponsored immigrant petitions for beneficiaries from the Philippines exceed the number of allotted visas. As a consequence, it may take several years, even decades, for families to be reunited with their loved ones living in the United States.
Since waiting for an immigrant visa to come out becomes impractical and time consuming, applying for a tourist visa becomes the quick fix alternative. And falling prey to the wrong advice, most Filipinos with pending immigrant petitions chose not to disclose this fact when applying for a tourist visa. This is where the problems start and your chances of getting a tourist visa leans towards 100% denied. I raise two main concerns that you need to be aware of if you are a Filipino living outside the U.S. with a pending U.S. immigrant petition.
First, in your tourist visa application forms, the DS-156 and the Supplemental DS-157 forms, there is a certification that you sign in which you are certifying to the consular officer that all information you provided is true, accurate, and correct to the best of your knowledge. Not disclosing this vital piece of information, namely that you have a pending immigrant petition filed by a family member, could get you in to trouble as it amounts to misrepresentation of a material fact. A big No! No! when it comes to submitting applications with U.S. Immigration.
Second, whenever you submit a tourist visa application, the consular officer will presume that you intend to migrate to the U.S. and not return to the Philippines. This presumption of immigrant intent shifts the burden of proof to the applicant to show the consular officer that he or she has all the intentions of returning after the temporary trip to the U.S. Basically, you are guilty of not returning, so you have to prove that you are innocent and returning! Thus, when a consular officer discovers that you have a pending petition and that you did not disclose it, only strengthens the presumption that you are in fact, an intending immigrant, rendering ineligibility for a tourist visa.
In the event that it becomes necessary for you to travel to the U.S. temporarily for a legitimate reason, even while you have a pending immigrant petition, be mindful of the importance of telling the consular officer of your status. Because processing times for immigrant visas may take several years, some Filipinos may have a legitimate reason to travel to the U.S. temporarily for some family or work-related emergency. Theoretically, a tourist visa may be issued and an applicant can just return to the Philippines to wait for the immigrant visa to come out. But in reality, most, if not all, applicants with pending immigrant petitions will be denied a tourist visa.
You increase your chances of securing a tourist visa, even with a pending immigrant petition, if you make a very strong, thorough, and persuasive showing of family, economic and social ties, and if you come off as a person of integrity and reliability that you will return to the Philippines after your stay. To recap, a successful demonstration of this intent is to show the following:
(1) Your trip to the U.S. is temporary and not permanent;
(2) You still maintain a residence outside the U.S. that you have no intent of abandoning;
(3) You intend to leave the U.S. at the end of your trip;
(4) You have made adequate financial arrangements for your trip to and from the U.S.
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Atty. Michael Templo is an admitted attorney in New York, USA and is a partner at Templo & Templo with offices in New York, USA and Makati City, Philippines. Atty. Templo specializes in US Immigration matters. The discussion above is not intended as legal advice, and cannot be relied upon for any purpose without the services of a qualified professional. For your comments and questions, Atty. Templo can be reached at mdt@templolaw.com or log on to www.templolaw.com.