Citizen Pinoy tackles ‘fraud ambush’ at US embassy
IMMIGRATION CORNER - Michael J. Gurfinkel (The Philippine Star) - March 24, 2019 - 12:00am

Jimmy Guinto tried to follow the rules so he could be “legal” in America. Little did he realize that the US embassy would accuse him of fraud just for following those rules. He wound up being stuck in the Philippines while his US citizen wife was in a coma in the US.

Jimmy was a crewman who jumped ship and overstayed in the US. By law, he could not get a green card in the US, and instead had to return to the US embassy in Manila to be processed for his immigrant visa based on his wife’s petition. He applied for a “provisional waiver” based on his having overstayed in the US, which was approved by USCIS. This effectively waived or “forgave” his overstay.

When he returned to the Philippines to be processed for his immigrant visa, he walked into an ambush: the consul accused him of fraud for overstaying, even though his waiver was already approved. Their reasoning was that because he overstayed his 29-day crewman visa and worked within 90 days of arrival over 20 years ago, it constituted fraud, and a fraud waiver was now required. In the meantime, he was stuck in the Philippines.

I tried to reason with the embassy, to no avail:

• A person applies for a provisional waiver because they overstayed. If it’s approved, they are forgiven for the overstay. So how can that overstay now constitute fraud?

• The regulations specifically state that crewmen are eligible for the provisional waiver. But the embassy was effectively saying crewmen are not eligible, in violation of those regulations.

• The embassy’s “90-day rule,” which they relied on to accuse him of fraud, is not even a rule and is not recognized or followed by the USCIS.

My office quickly filed the fraud waiver, because the embassy wouldn’t budge. Thankfully, a sympathetic USCIS expedited the approval of that waiver, allowing Jimmy to return to his ailing wife in the US.

It also appears the embassy is creating extra, unnecessary work for USCIS by forcing USCIS to again process a waiver application that USCIS already approved and already determined a qualifying relative experienced extreme hardship. The USCIS is already overworked and backlogged without the embassy adding to that workload by sending back approved provisional waivers for fraud based on overstaying decades ago. In fact, USCIS’s Policy Manual repudiates the State Department’s 90-day rule, expressly stating it is not a rule and USCIS does not follow it.

This week’s episode of Citizen Pinoy shows the upheaval in Jimmy’s life when he tried to follow the rules and do the right thing, but was accused of fraud for overstaying, after being forgiven for that overstay. I hope this episode will bring about a change in the embassy’s outlook and policies. People should not be punished for trying to follow the rules, nor charged with violations that have already been forgiven.

To learn more about Jimmy’s story, watch Citizen Pinoy on ANC on Sunday, March 31 at 1:30 a.m.

MICHAEL J. GURFINKEL
Philstar
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