Filipino Mother and Son United After 11 Years, Patriot Act and Overage Issues

CASE: Immigrant Visa Application
ISSUES: Overage, Patriot Act
NATIONALITY: Filipino
LOCATION: California / Philippines

Our Filipina client came to the United States in December 2001 on a tourist visa. Her son was left back in the Philippines. Our client was on her way to permanent residency. Her U.S. Citizen father filed an I-130 petition for her back in 1987, and it was approved in the same year. So priority dates were getting current, and with the law on her side, she was on her way to getting a green card and bringing her son as a derivative.

However in May 2004, the petitioner father died. Our client already overstayed for over a year, and so coming back to the Philippines would give her a ten year bar. She went through several lawyers and was placed in deportation proceedings in Chicago and Los Angeles. She was losing hope.

She retained our firm in November 2010 and through INA 204(l) and Public Law 204(l), after representing her in Chicago and Los Angeles for interviews and court, she finally got her green card on February 15, 2012. Her case was complex, and it was indeed a success story. (Please click here for the success story). So after she got her green card, it was time to bring her son over here. Her son whom she has not seen in over eleven years.

There was a big problem though. Consular processing in Manila takes time. The filing parts are easy. We do those all the time. Other lawyers too. It’s the waiting that takes time – how long Manila schedules an interview. Our client’s son was born July 23, 1991, which meant that he was going to turn 21 in July 23, 2012. He would get a visa soon if immigration still considered him a “child” (under 21 years old). If he was over 21, then the preference category would change, and thus delay the process by a good seven years. So at that point we had to hurry, or come up with a novel argument.

We filed everything that could be filed as quickly as possible. From the I-824, to the immigrant visa payment process, to the immigrant visa application. We called the embassy for interview scheduling, but he was scheduled for August14, 2012. At that point he would be over 21.

So we had to brief the consul about one of the provisions of the Patriot Act, a provision that would still make our client’s son a “child” despite being over 21. This was different from the Child Status Protection Act. Under Section 424 of the Patriot Act, an alien whose 21st birthday occurred after September 2001, and who is the beneficiary of a petition or application filed on or before September 11, 2001, will be considered a “child” for 45 days after the alien”s 21st birthday. Thus, immigrant visa applicants who would otherwise lose status upon attaining 21 but who meet the conditions of section 424 may be issued visas up to 45 days after their 21st birthday.

August 14, 2012 was within 45 days of our client’s son’s 21st birthday, so he was in. We sent a brief to the consul to inform them of our client’s eligibility despite being over 21. We also sent a brief to our client. Unfortunately due to a delay in St. Luke’s processing of his medicals, they had to reschedule his interview. This was frustrating because he was already within the Patriot Act. A rescheduled date past September 6, 2012 (45 day mark) would delay the process by over seven years.

We did everything we can to urge the Consul to schedule an interview before September 6. We called and emailed, even though we knew this was not the how it’s done. We mailed them another packet, explaining the Patriot Act. Finally after about a week, they scheduled the interview on September 4, 2012. He made it by two days.

But his case wasn’t over. He went to his interview the morning of September 4, 2012, and unfortunately was assigned to an officer who had no idea what the Patriot Act is. Fortunately we told our client’s son to bring a copy of the brief, supplementing his supporting documents. The officer said he was not eligible, but took the brief we prepared. He was asked to come back in the afternoon.

We knew he should be in. We knew he should have gotten it. But that’s what you get in consular processing cases, it really depends on which officer you get.

I would not know first hand if he got approved. It was him who will find out once he got back to the consul that afternoon.

I got a call early that morning from his mother. She was so thankful for our work. Her son’s immigrant visa was approved. After eleven years, she’ll finally see her son.

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