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 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.
U.S. IMMIGRATION LAW
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