Common immigration misconceptions -- Part 2 - Immigration Corner byMichael J. Gurfinkel

In my previous column, I discussed some of the more common misconceptions or misunderstandings about immigration law. These misconceptions are often based on information from friends, relatives, consultants, or other "advisers." These advisers often rely, too, on rumors and hearsay, and are not even aware of the ever-changing immigration law.

As a result, some people do not apply for immigration benefits to which they may be entitled, and delay their legalization process. Some apply for benefits to which they are not entitled, and wait for immigration benefits that would never come. They waste time, money, and effort for nothing.

I hope this column will clarify these misconceptions, so that people will no longer commit mistakes that may jeopardize or delay their entitlement to certain immigration benefits.

Here are some more common misconceptions:

6. Secret marriages will never be discovered by the US Embassy or INS. -- FALSE!

There is no such thing as a "secret marriage". If you were married by a priest, local official, etc., and it was filed with the government, it is a public document, and is not, by definition, "secret". Many people, who were single when their parents petitioned them, got married while waiting for their visas, and tried to hide the marriage, because the marriage may either disqualify them for a visa (if their parent is an immigrant), or make them wait much longer (if their parent is a citizen). The Embassy is now very wise to people hiding their marital status, and routinely checks official government records, to see if there really is a marriage contract on file. In addition, paying someone to have the marriage contract "pulled" won't help, because there are several places and ways marriages are recorded.

7. It is O.K. to remarry without divorcing your first spouse. -- FALSE!

You cannot marry a second time without terminating your first marriage, either by divorce or annulment. Many people separate from their first spouse and go to the US. They may meet someone, and decide to get married. They think that because they have not seen their first spouse for many years, it is alright to marry the second person. However, by law, if you marry a second time, without terminating the first marriage, the second marriage is void. If you were petitioned by an American through that (void) second marriage, the petition would also be void. Divorce is legal in the US, so make sure you divorce your first spouse before you marry someone else.

8. If a person knows someone in the INS or the US Embassy, that insider can pull his petition and put it ahead of other applications. -- FALSE!

The INS and the US Embassy are highly efficient and professional agencies. Visa applications are processed in the order the petitions were originally filed with INS. (The date a person's petition was filed with INS, or a Labor Certification was filed with the State employment agency, is a person's "priority date," or place in line for a visa.) Priority dates are released every month by the State Department, showing the filing dates that petitions or Labor Certifications would currently be processed. So, you cannot "go out of turn," but must wait for your priority date to be "current."

9. Philippine court adoptions are automatically accepted by the Embassy and INS in giving visas to the adopted child. -- FALSE!

Even if a child has been legally adopted in the Philippines, there are certain legal requirements under US immigration laws which the adopting parents must satisfy, i.e 2 years physical custody (meaning, living under the same roof as the child for 2 years). You also need 2 years legal custody (meaning, the final adoption order must be 2 years old), and the adopting parents must have "primary parental control". If the biological parents continue to live with or are active in the child's life, a visa could be refused, despite a valid court adoption in the Philippines.

Michael J. Gurfinkel has been an attorney for 20 years. He has always excelled in school: Valedictorian in High School; Cum Laude at UCLA; and Law Degree Honors and academic scholar at Loyola Law School, which is one of the top law schools in California. He is also a member of the American Immigration Lawyers Association and the Immigration Section of the Los Angeles County Bar Association.

His offices are located at 219 North Brand Boulevard, Glendale, California, 91203 Telephone: (818) 543-5800. His Makati office is located at Heart Tower, Unit 701, 108 Valero Street, Salcedo Village, Makati, Philippines; Telephone: 894-0258 or 894-0239.

(This is for informational purposes only, and reflects the firm's opinions and views on general issues. No prediction, warranty or guarantee can be made about the results of any case. Should you need or want legal advice, you should consult with and retain counsel of your own choice.)