Tricky immigration questions that can throw a lawyer off (1)

While not an everyday occurrence, there are moments in a lawyer’s life when someone — be it a friend, a relative, or a routine client — lobs a question from out of the blue that is phrased in somewhat inapposite fashion, or otherwise couched in nebulous terms that throws off the lawyer, resulting in a response which, albeit technically correct, brings about unintended consequences.

This could happen during a casual or off-the-cuff conversation, as in the following scenario:

During a family dinner at their parent’s house on the East Coast, a Filipina-American lady asks her younger sister (who is a newly practicing immigration attorney) the following question:

“My friend has an H-1B working visa. She wants to marry her boyfriend in the Philippines so that he can join her in the US on an H-4 dependent visa. But the boyfriend has a pending immigrant petition from his mother. Do you think that would be a problem?”

At first blush, the question seems to be geared towards the issue of a potential conflict between the boyfriend’s plan of applying for an H-4 nonimmigrant visa and his status as a beneficiary of an existing immigrant petition from his mother — a dual intent issue.

(And that’s probably what the Fil-Am lady and her friend are truly curious about, but who knows.)

Without further evaluating the question, and being aware that dual immigrant/nonimmigrant intent is allowed in an H visa, the lawyer-sister responds:

“Well, H-4 is a dual intent visa, so I don’t see any problem at all.”

“Okay, I’ll let my friend know. Thanks.”

The immigration talk ends right there and the sisters moved on to other matters.

Relying on this informal opinion, the H-1B friend marries her boyfriend who eventually gets an H-4 visa.

Unbeknownst to the lawyer, the boyfriend’s mother is a US permanent resident (not a US citizen). And because there is no immigrant visa category for married children of US permanent residents, the petition is automatically canceled when the boyfriend gets married.

As expected, the boyfriend gets upset and lays the blame for the loss of his immigrant sponsorship on his wife’s friend, who in turn points a finger at her lawyer-sister.

Since dual intent questions are quite common in immigration practice, the lady’s lawyer maintains that she did not act improperly in giving correct, albeit incomplete, advice.

She also points out that the debacle would have been avoided had her sister framed the question pointedly and with more clarity, as follows:

“My friend, who has an H-1B working visa, wishes to marry her boyfriend in the Philippines so that he can join her in the US on an H-4 dependent visa. But the boyfriend has a pending immigrant petition from his mother. Do you think he can get an H-4 visa despite being petitioned by his mother? And how will this affect his immigrant sponsorship?”

With a more accurate phrasing, the lawyer’s attention would have been called to the fact that the planned marriage would hurt the boyfriend’s status as an unmarried beneficiary of a US permanent resident’s petition, and could have relayed the necessary caveat through her sister.

Ironically, had the boyfriend’s mother been a US citizen (instead of a permanent resident), the petition could have survived cancellation and been merely re-classified under a different immigrant visa category (“married sons and daughters of a US citizen”) — still valid but with a longer wait time — which could have kept the animosity meter from reaching the boiling point among the parties.

(To be continued)