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Most entries below contain actual legal discussions of events directly related to Filipinos in or immigrating to the United States.
Remember- These writings are provided for general information only and do not constitute legal advice, nor do they create any attorney-client relationship. Each person's needs and requirements are different and require a personal evaluation to determine the proper legal course of action.

Friday, June 9, 2017

Huge July Advance in EB-3 Philippines and EB-3 India Final Action Dates


The 2017 July Visa Bulletin brought exciting news for many in the Employment-based 3rd category for the Philippines and India.

Final Action Dates for the Philippines advanced 12 1/2 months from the May 1, 2013 cutoff date in June to May 15, 2014 in July.

 
India also made a large jump, advancing 9 months from the May 15, 2005 cutoff date in June to February 15, 2006 in July.

Please click here if you would like a detailed explanation of how to read the monthly Visa Bulletin, and the terms used here.

Remember, Priority Dates are sometimes subject to fluctuations.  Although these dates have advanced for July, it is always possible these Priority Dates will regress in August or September if the demand for visas is July is higher than expected.


For Those with Applications for Permanent Residence Already Pending:

Hundreds of Filipinos were able to file their residence applications in early 2015 and have just been waiting since then for their Priority Date to become current.  The same for Indian nationals, who filed their applications in 'the glitch of 2007'.  This July advance in the cutoff date will enable USCIS to approve many of those cases.  With most of these already-filed applications, you can expect you and your attorney to receive a request from USCIS for items necessary to complete your case. 

The most commonly requested documents are an updated medical exam and a job offer verification letter from your employer.  While it is important to respond to the request from USCIS quickly, it is equally important to not send these items until requested.  For my clients, I will be obtaining the appropriate job letters from the employer and will inform you if a new medical exam will be required.


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Wednesday, April 12, 2017

EB “Dates for Filing” May 2017 Visa Bulletin: IGNORE for Now


Changes to the Employment-Based (“EB”) “Dates for Filing” chart in the May & June 2017 Visa Bulletin have created confusion.

USCIS will NOT allow EB Applications for Permanent Residence in May or June using the “Dates for Filing” chart.  For Employment-based cases, only the “Final Action Date” chart will be used.


The “Dates for Filing” chart began appearing in the Visa Bulletin beginning October, 2015, and ONLY applies to people applying for Permanent Residence with USCIS while in the United States.  Applicants obtaining their Immigrant Visa from outside of the U.S. should completely ignore the Dates For Filing chart.

Additionally, The Visa Bulletin’s “Dates for Filing” chart can only be used when specifically authorized by USCIS.  The Employment-based “Dates for Filing” chart has appeared in the Visa Bulletin for the last 19 months, and in only 5 of those months did USCIS allow these dates to be used for Permanent Residence filing.

It will be many months before USCIS allows us to use the Employment-Based “Dates for Filing” chart.



A more general discussion on using the Visa Bulletin can be found in Understanding the Visa Bulletin.


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Thursday, March 23, 2017

H-4 Extensions and H-4 EAD Processing Delays


When an initial or extension H-1B petition (Form I-129) is filed under the Premium Processing program, it is common to also include the H-4 applications (Form I-539) for family members and a request for an H-4 EAD (Form I-765) for the spouse.  The advantage of filing all of these requests together is that USCIS usually decided the H-4 application and H-4 EAD in the same quick time period as the H-1B petition.

USCIS has advised AILA that certain H-4 Extensions and H-4 EADs filed with the I-129 under Premium Processing might no longer be decided simultaneously. 

USCIS previously announced the Premium Processing program would be suspended for up to six months beginning April 3, 2017.  Because of the announced suspension of the program, USCIS is now receiving a substantial increase in the number of H1B/H4/H4EAD requests filed under Premium Processing.  In order to complete the review of the main H-1B petitions in the required 15 days, a decision on the accompanying H-4 and H-4 EAD requests may be delayed.

Remember, the Premium Processing program only guarantees that USCIS will review the H-1B petition within 15 days; USCIS is never required to also decide the family’s applications in that same amount of time.  USCIS has long advised that the quick adjudication of the extra applications from the family  was being done only as a convenience to the applicant as time allowed.



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Wednesday, March 8, 2017

There is No Philippines Visa Free Travel to the U.S.

This rumor started last month with a fake news story on a phony news site,  tv-bbc.com.  People called us, we laughed and ignored the whole episode. 

Now the story is making the rounds again, and my office is getting calls again.

People, really.  Mentally absorbing a continual flow of questionable information received from dubious and unknown sources is intellectually stupefying.  Question everything you read, and always evaluate the source for veracity and bias.


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Sunday, February 12, 2017

Panic Among Irregular Immigrants – The Ignored Executive Order on Interior Enforcement


While the media focuses on the Executive Order (EO) attempting to institute entry restrictions, the EO that changed the tenor of interior enforcement has caused fear and panic within the United States, including among Filipinos.

Conservative estimates place the number of Filipinos in the U.S. who have overstayed their visa to be over a quarter million, including Filipinos under DACA, Orders of Supervision or affirmative Deferred Action.

For many years we have lived under a rational immigration enforcement policy that established a list of priority cases to be targeted for removal from the United States.  Serious offenders, dangers to the community and recent illegal border crossers were the target of immigration enforcement actions.  People who did not pose a threat and stayed out of trouble have felt comfortable knowing that they were reasonable safe,

This has now ended with the signing of EO 13768 on January 25, 2017, effectively canceling the prior rational enforcement policies.


Enforcement actions are no longer restricted by the prior enforcement priorities.  In essence, we are back to the old system that allows Immigration and Customs Enforcement (ICE) to detain whoever they encounter, no longer restricted by the old policies.  A return to random and unpredictable immigration enforcement has led to stress and fear among the irregular population. 

Social media and irresponsible rumor mongering has escalated the fear.  Just look at the panic created when a false rumor was floated that the Philippines would be put on the list of countries barred entry into the United States! 

Once the travel ban rumor ran its course, media coverage of increased ICE enforcement around the country started a second panic.  New rumors are flying about everything from planned church raids to ICE removing children from school to lure their parents into surrendering.  People are hearing they should stay home, keep their kids out of school, and are worried about having contact with the police.

My advice – Calm Down!

Nearly all of the enforcement we have seen this week was directed at persons with criminal convictions or old deportation orders.  Yes, there have been collateral arrests of random persons they encounter during these arrests, and this is concerning but is nothing that was not common before the old prioritized enforcement policies.

Yes, we will see more random enforcement actions, but use rational thought when you hear exaggerated rumors.  Historically, and for me that is over 25 years, Immigration does not raid churches, or schools, or even large public gatherings.  There will always be some aberrant enforcement actions somewhere in the country, usually a poorly planned local enforcement action that National ICE often later apologizes for, but those are the exceptions.

There are some actions you can take now if you are concerned about your immigration situation. 

-Have your situation reviewed by a competent immigration attorney to review your history or any pending case you may be have to learn how that case may effect any attempted removal action against you.  An attorney, as well as many community groups, can also advise you on what to expect should you encounter an enforcement action.

-If you have an outstanding removal order, contact your consulate to update your travel documents.

-Contact your local immigrant community service organization for advise on developing a plan of action should a family member be detained.  That plan can include Powers of Attorney to handle your property or care for your children.

-Attend a local “Know Your Rights” presentation. 

And keep calm!


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Another Citizenship Quagmire: The Honorable Perfecto Yasay Jr


UPDATE:  On March 8, 2017, the Commission on Appointments rejected Perfecto Yasay for the position of Foreign Affairs Secretary because of U.S. Citizenship issues.  The post below remains accurate. 


February 12, 2017:  This has been a recurring story in the Philippines for decades.  City counselors, mayors, and even congressional candidates have been disqualified or removed from public office because they are U.S. Citizens. 

Now the confirmation hearing for Perfecto Yasay as the Secretary of Foreign Affairs has been rescheduled over unresolved allegations involving U.S. Citizenship.

Mr. Yasay was reported to have used a U.S. passport in the past when departing the Philippines, a strong, but not definitive, indication of U.S. Citizenship (despite an incorrect assertion made by an attorney, quoted here).   More recently an additional piece of evidence has been reported that indicates that Mr. Yasay may have renounced his Citizenship as recently as late 2016.

And there lies the quagmire:  How to correctly renounce U.S. Citizenship?

I am not a Filipino lawyer, so when I discuss the laws of the Philippines I speak only as an observer who has seen this story play out over and over in the media.  To hold certain Philippine government positions, some Filipinos must renounce any foreign citizenship they may also be holding  The case of Senator Grace Poe is a good example.  In order to become the chair of the Movie and Television Review and Classification Board (MTRCB), Ms. Poe signed and submitted to the Philippine government an Affidavit of Renunciation of US Citizenship, an action that appears to be a common requirement for certain government positions.  Similar renunciation affidavits were also used in other reported cases.  However, submitting such an affidavit to the Philippine government does not remove a person's U.S. Citizenship under American law.

There is an old adage in immigration law saying “you are a citizen of any country that claims you as a citizen”.  In other words, if the law of some country declares you to be a citizen of that country, then you are a citizen of that country and you must follow that country’s laws to terminate the citizenship.  For example, merely saying “I renounce” three times and spinning on your heel does remove the unwanted citizenship, unless there is a law in that country saying spinning and repeating will set you free.

The most common way to relinquish U.S. Citizenship is to make a formal renunciation in front of a U.S. consular officer.  Once the officer is convinced that the declaration is made knowingly and not under mental or emotional duress, citizenship is lost once approved by the consul.

Another way to relinquish U.S. Citizenship, and this was the method partially used by now-Senator Poe and others, was to commit an “expatriating act” with the intent to relinquish citizenship.  One of the statutory expatriating acts that will cause a loss of U.S. Citizenship is to accept employment with a foreign government requiring a declaration of allegiance to the foreign country before accepting the position.

Remember, however, that the expatriating act must be with the intent of giving up United States Citizenship.  One can accept employment with a foreign government and swear allegiance to that government, but if those steps were committed without the desire to lose U.S. Citizenship, citizenship is not lost.

In Senator Poe’s case, she began as chair of the MTRCB and swore an oath of allegiance to the Philippines on October 21, 2010.  She later formally renounced her U.S. Citizenship at the embassy in 2011 by asserting she committed an expatriating act in 2010, and the act was committed with the full intent to give up her U.S. Citizenship.  Although her Certificate of Loss of Citizenship was not approved until 2012, the U.S. consulate generously backdated the end of her citizenship to the date of her expatriating act, October 21, 2010.

Renouncing U.S. Citizenship is not complicated, but the fact that the problem occurs as often as it does is just another result of the close and longterm relationship between the United States and the Philippines.


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Tuesday, November 1, 2016

Understanding the Visa Bulletin - Basics and Tips


        [Updated Nov. 1, 2016 to include “Dates for Filing” charts]  

 

The Visa Bulletin Explained

Whenever I begin a new topic in my immigration law class, we first cover the “vocabulary”, usually proclaiming,  “You can not discuss a subject if you do not know the language”.

Visa Bulletin.  If you are the beneficiary of an immigrant petition (other than the spouse, parent or child of an US Citizen), you probably already know about the Visa Bulletin (VB).  The VB is published monthly by the Department of State (DOS) to informs us of which immigrant visas will be available during the following month.  For example,  the VB published around May 9th will show visa availability for the month of May.   Remember, the dates listed in the VB only apply to the month indicated on that issue.  Current and past Visa Bulletins can be found here.

Immigrant Categories.  Different immigrants are assigned different categories.  The number of visas available for each category are set by law and only Congress can change the mathematical formula.

Family 1st (FB1) Unmarried Sons and Daughters of US Citizens.
Family 2nd (FB2A) Spouses and Children of Permanent Residents.
Family 2nd (FB2B) Unmarried Sons and Daughters of Permanent.
Family 3rd (FB3)  Married Sons and Daughters of US Citizens.
Family 4th (FB4)   Brothers and Sisters of Adult US Citizens.
Employment 1st (EB1)  Priority Workers.
Employment 2nd (EB2) Professionals with Advanced Degrees & Exceptional Ability workers.
Employment 3rd (EB3)  Skilled Workers, Professionals, and Other Workers.
Employment 4th (EB4)  Certain Special Immigrants.
Employment 5th (EB5)  Immigrant Investors.

[Note: The Visa Bulletin DOES NOT APPLY to the Immediate Relatives of U.S. Citizens (parent, spouse or unmarried child under 21).  For the Immediate Relative category, a visa is always available.]

Priority Date.  This is the date a petition or application is received by USCIS or, in some cases, the Department of Labor.  Your Priority Date is your absolute place in line for an immigrant visa.  The date your petition is approved has no effect on your Priority Date, which is why it does not matter if USCIS takes five days or five years to approve, for example, an FB4 petition.  The wait for an FB4 immigrant visa is well over 10 years, and the day the petition is filed creates your Priority Date and your place in line for an immigrant visa.

Cutoff Date.  These are the dates in the Visa Bulletin shown for each immigrant visa category.  Once your Priority Date is earlier than the Cutoff Date, your priority date is now “current” and an immigrant visa is available for you.  If your Priority Date is the same (a common mistake) or later than the Cutoff Date, keep waiting.

“C”.  When the Cutoff Date is replaced by the letter “C”, all Priority Dates are current and visas are available for every Priority Dates in that category.

“U”.  Likewise, when the Cutoff Date is replaced by the letter “U”, no visas are available in that category regardless of the Priority Date.

Country of Chargeability.  Along with a Congressionally established limit on how many visas are available for each category, there is also a limit on how many visas in each category that can be issued to any one country.  This limit is called the “per-country limit”.  The country your visa is counted against, or ‘charged’ to, is your Country of Chargeability.  This is important because for some countries, including the Philippines, the number of persons waiting for visas exceeds the annual per-country limits, creating a longer wait for visas then most other countries. 

Your Country of Chargeability is determined by your place of birth, not your place of residence or citizenship.  In some special situations, you can use the Country of Chargeability of your spouse or parent, if different from your own, usually benefiting you with a shorter wait.  In even more rare cases, double cross-chargeability is possible; simultaneously taking the Priority Date from the direct petition beneficiary and the Country of Chargeability from the dependent spouse.

“All Chargeability Areas Except...”.  On the Visa Bulletin, this is all Countries of Chargeability other than those four or five where demand for visas have exceeded the per-county limits.  Currently, only China, India, Mexico and the Philippines have their own cutoff dates because of the per-country limits.  The Dominican Republic also occasionally makes this list.  All other countries fall under the “All Chargeability Areas Except...”.

Retrogression, also sometimes referred to as Regression.  There are times with the Department of State realizes that they have advanced the cutoff dates too far and are receiving more visa applications than there will be visas available.  When this occurs, DOS backs up the cutoff date, moving it further back in time in order to slow the number of visa applicants.  Sometimes the cutoff date will retrogress a few months or years, and sometimes they just make that category Unavailable.

The Charts in the Visa Bulletin


Before October, 2015, the Visa Bulletin contained only two main charts:  Family-Sponsored Preferences and Employment-Based Preferences.  These charts listed the Cutoff Dates in each preference category.  Remember, if your Priority Date is earlier than the Cutoff Date shown in your category, you may now be granted an immigrant visa or apply for Permanent Residence.

The Visa Bulletin now contains four charts:

            #1            Family-Sponsored Preferences “Final Action Date” Chart
            #2            Family-Sponsored Preferences “Dates for Filing” Chart
            #3            Employment-Based Preferences “Final Action Date” Chart
            #4            Employment-Based Preferences “Dates for Filing” Chart


The Two “Final Action Date” Charts
“Final Action Date” is just a new name for the old charts that have always been in the Visa Bulletin.  With one “Final Action Date” chart for Family and the other for Employment, these charts continue to serve the Visa Bulletin’s main function of informing both the government and the public of when an immigrant visa can be issued.  When a person’s Priority Date is earlier than the Cutoff Date shown in their particular category and country, an immigrant visa is now available.  Anyone who will be applying for their visa at a U.S. Embassy or Consulate will require a current Priority Date on the “Final Action Date” Chart before a visa will be issued.

The Two “Dates for Filing” Charts
The “Dates for Filing” charts are causing confusion.   There are three points to remember when looking at the “Dates for Filing” charts. 

First, this chart is ONLY for people applying for Permanent Residence with USCIS while in the United States.   Applicants obtaining their Immigrant Visa outside of the U.S. should completely ignore the Dates For Filing chart!

Second, there are some months each year when the “Dates for Filing” charts cannot be used. 

And third, whenever the “Dates for Filing” charts are not to be used, the “Final Action Date” charts must be followed.

The “Dates for Filing” Charts

The original purpose of the “Dates for Filing” chart was to give people applying for Permanent Residence while in the United States the opportunity to file their application before their Priority Date is current on the “Final Action Date” chart.  Hence the name, “Dates for Filing”.  By filing early – before a Priority Date is current – a person can obtain work authorization and sometimes travel authorization while they are technically still “in line” waiting for their turn to become Permanent Residents. 

Before each month’s Visa Bulletin goes into effect, USCIS will decide if people can use the “Dates for Filing” chart, or if they must use the “Final Action Date” chart.  However, their decision is nowhere to be found in the monthly Visa Bulletin.  Instead, you must go to the USCIS websitefor their monthly update of which chart can be used to file for Permanent Residence.  

For example, look at 2016.  From January to April, USCIS allowed people to file for Permanent Residence using the Family-Sponsored “Dates for Filing” chart, but not the Employment-Based “Dates for Filing” chart.  From May to September, the use of either “Dates for Filing” chart was forbidden.  But then for October and November, both “Dates for Filing” charts could be used when filing for Permanent Residence. 

Remember, if USCIS does not allow a “Dates for Filing” chart to be used, you must instead use the “Final Action Date” chart.


Also remember that if you file for Application for Permanent Residence in a month when your Priority Date is not current on the appropriate chart for that month, you risk having your case denied and you wasted the filing fees you paid.

Example: Using the “Final Action Date” Chart

Put all of this to practice by using the “Final Action Date” chart below from the November 2016 Visa Bulletin.  Consider an FB-3 beneficiary (married son or daughter of a U.S. Citizen) from the Philippines with a Priority Date of March 1, 1999.  First, locate the cutoff date for FB-3 under ‘Philippines”, and you will find the date of August 8, 1994.  This date tells us that the government is able to grant visas to persons with a Priority Date before August 8, 1994, four and one-half years earlier than our beneficiary’s Priority Date of March 1, 1999. 

Final Action Date - Philippines
(November 2016)


CATEGORY

    All Chargeability
   Areas


Philippines

FB1


FB2A


FB2B


FB3


FB4



22 OCT 09 


22 JAN 15


15 APR 10


22 JAN 05


01 AUG 03

01 SEP 05


22 JAN 15


15 FEB 06


08 AUG 94


08 MAY 93





















Saying that there is still a four and one-half year wait would be incorrect.  No one know can predict with any level of certainty how long the wait will be before the Priority Date is current.  Visa allocation follows a complex mathematical formula that can be modified by Congress at any time, plus the Department of State does not know how many people are actually waiting for a visa in this category.  An accurate legal advisor say (and accuracy is vital in immigration law) that ahead of you in line are all the petitions filed in the four and one-half years between August 8, 1994, and March 1, 1999, plus their spouses and maybe some children, and the wait for your immigrant visa may be more or less than that  four and one-half years.

Example: Using the “Dates for Filing” Chart


Let us use the example of a Filipino teacher in the United States with an Employment-Based 3rd Preference (EB-3) priority date of October 1, 2011.  Since the teacher is lawfully in the United States and is eligible for Permanent Residence, he will apply for Residence with USCIS instead of applying for his Immigrant Visa through the U.S. Embassy in Manila.

The first step is to compare his Priority Date to the cutoff dates on both the “Final Action Date” and the “Dates for Filing” charts.  The teacher’s Priority Date is October 1, 2011.  The ‘Final Action’ cutoff date is April 1, 2011.  Since the cutoff date is earlier than the Priority Date, no immigrant visa is available yet for this teacher.  There are still six months worth of petitions that must be worked before it is this teacher’s place in line for his Immigrant Visa.

The result is different when looking at the November “Dates for Filing” chart.  The EB-3 cutoff date is September 1, 2013, almost two years ahead of the Priority Date!  A quick check with USCIS [https://www.uscis.gov/visabulletininfo]shows that the November, 2016, Employment-Based “Dates for Filing” chart can be used to file for Permanent Residence during the month of November.

Result-  Although no immigrant visa is yet available according to the “Final Action Date” chart, this teacher can now file his Application for Permanent Residence.


For a more detailed discussion of using the Dates for Filing” charts, see the Q & A section of the blog post titled, “Early Adjustment Filing Fast Facts – October Visa Bulletin”.

 (For my law students who read this, yes, Final Action Dates will always be on the final.)


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Friday, October 21, 2016

USCIS Filing Fees Increase on 12/23/2016


Notice of USCIS Fee Increase:


The government filing fees for the most frequently used forms with go up for all cases received by USCIS on or after December 23, 2016.

However, there is no increase in the $85 fee for Biometrics.

The new fee for the most often used forms are indicated below:

I-90    Application to Replace Permanent Resident Card   $455
                        ($90 increase)

I-129  BASE fee for Petition for Nonimmigrant Worker       $460
                        ($135 increase)

I-129F Petition for Alien FiancĂ©(e)                                     $535
                        ($195 increase)

I-130  Petition for Alien Relative                                         $535
                        ($115 increase)

I-140  Petition for Alien Worker                                          $700
                        ($120 increase)

I-485  Application for Permanent Residence                      $1140
                        ($155 increase)($1225 total with biometrics)


I-765  Application for Employment Authorization                 $410
                        ($30 increase)
N-400 Application for Naturalization                                   $640
                        ($45 increase)

And if obtained your Immigrant Visa at the embassy, after you enter the United States as a Permanent Resident:

USCIS Immigrant fee                                                        $220
                        ($55 increase)



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Monday, September 19, 2016

Local Announcement- Ph Consular Service Visit to Kansas City


October Update:  
    Over 230 Filipinos received consular services at this event.

Representatives from the Philippine Consulate in Chicago will be in the Kansas City area on September 24, 2016.  

Services will be provided beginning at 8:00 a.m. at the Filipino Cultural Center, 9810 W. 79th Street, Overland Park, Kansas.

Although most of the attendees will be receiving follow-up services based on applications already submitted to the Consul by mail, walk-in applications and requests for assistance will be provided as time permits.

The Chicago Consulate General has maintained a very active outreach program for several years, traveling to many different cities throughout their sixteen state jurisdiction.

Below is a list of their typical services.  However, one of the most valuable services they provided is making themselves available to discuss your questions and legal concerns.

Passport Services:  Renewal, Replacement, Amendments and Urgent Extensions

Dual Citizenship Applications

Legal and Notarial Services:  Power of Attorney and signature authentication on legal documents.

Visa Applications

Civil Registry Actions:  Reports of Marriage, Birth and Death.   



NOTE:  All payment of service fees must be in cash, or by money order or cashier’s check made payable to the “Phiippine Consulate General”.

Limited photocopying services, refreshments and assistance with forms will be provided through the Filipino Association of Greater Kansas City.

For additional information, contact Bing Sakach.

Wednesday, June 1, 2016

The “Hole” in the Filipino WWII Veteran Parole (FWVP) Program


U.S. Citizenship and Immigration Service (USCIS) announced a small program in May that allows a select few relatives of Filipino World War II veterans to enter the United States to assist their aging veteran parent or sibling.   My full analysis of the Filipino WWII Veteran Parole (FWVP) Program can be found here

Unfortunately, USCIS left a hole in this special humanitarian program.

Here is the background.  U.S. Citizens and Permanent Residents are allowed to petition the government for certain of their relatives to be allowed to immigrate to the United States.  However, only certain relatives are allowed, and the waiting period before they can come to the U.S. can be very long.  For example, a U.S. Citizen who wishes to bring his married son to the U.S. can expect a wait of over twenty years before the son will be allowed to join his father in the United States. 

The FWVP Program provides a way for some of those long-waiting relatives to enter the U.S. now so they can be with their aging veteran relatives while waiting for their eventual immigrant visas.

Simply put, the relatives eligible to participate in the FWVP Program are certain named beneficiaries of approved immigrant petitions filed by the WWII veteran or the veteran’s “surviving spouse”.  The term “surviving spouse” is not defined in U.S. immigration laws, but in other federal law the term is used to describe the widow or widower of a marriage partner who died during the marriage.

And there lies the flaw in the FWVP.  Petitions filed by a veteran’s surviving spouse are covered, but not petitions filed by the spouse of a living WWII veteran.  Strangely, petitions filed by the spouse of a veteran are only valid if the veteran is dead.



USCIS takes special care to ensure a petition filed for the son or daughter of a veteran is eligible for the FWVP Program.  Consider the following scenarios that ARE eligible for FWVP:


-The son/daughter of a veteran, if the Petition is filed by a living veteran.

-The son/daughter of a deceased veteran, if the veteran’s spouse is living and the petition is reinstated.

-The son/daughter of a deceased veteran and the veteran’s spouse, if the Petition is filed by the surviving spouse.


So, why does the FWVP not cover a Petition filed by the spouse of a living veteran for their common son or daughter?


Most likely this omission was an oversight.  The target of the benefit is the same – the sons/daughters of a WWII veterans in the United States.  What USCIS failed to consider was the common past occurrence of the spouse, and not the veteran, to filed the petition for their common son or daughter. 

Consider this real life situation.  A Filipino WWII veteran and his wife, both U.S. Citizens, have an adult daughter.  In 1997, they decided to petition for their daughter, knowing that it would be decades before she would receive an immigrant visa.  Since every immigrant allows only one Petitioner, this elderly couple must decide who will be the Petitioner.  Should the petition be filed by the veteran, by the veteran’s wife, or should they each file separate petitions for the same daughter? 

This is a conversation that old immigration attorneys have had hundreds of times.  Even though the filing fee for the 1997 petition was only $110, people were still reluctant to file two petitions and pay two filing fees for a speculative future benefit that may or may not be used 20+ years later, so they had to decide which of them would file the petition.  Several factors were considered when making the decision, the most common being which of the couple was more likely to still be alive in 20 years!  Their comparative age and health was often the deciding factor, so it was common for the youngest and healthiest of the spouses to be the Petitioner.

This omission creates a bizarre paradox:  A petition filed by the spouse of a living veteran will not qualify their child for FWVP......until the veteran dies.  Once the veteran is deceased, the spouse is now a “surviving spouse” and their son or daughter can come to the United States.

The Poor Workaround

There is a way to avoid this omission, but it involves money, multiple steps and more time delays.

The still-living veteran can file a new petition for the same son or daughter that is already the beneficiary of the spouse’s approved petition.  When this new petition is approved, the relative qualifies for FWVP.  Of course, this means an upfront filing fee of $420 for this second petition.  Also, current USCIS processing time for this petition is somewhere between four and five years.  Even if you can have the petition expedited, this is not a pleasant option.



USCIS will be publishing more details of the FWVP Program on their website before the program begins June 8th.  Perhaps they will take that opportunity to modify this unfortunate omission.




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