_____________________Analysis__________________________
Permanent Resident Status
For Sons and Daughters Of
Naturalized Filipino World War II Veterans
By Roman P. Mosqueda, B.S., LL.B., LLM., & S.J.D.
Legislation
authorizing adjustment of status to permanent resident of sons and daughters of
naturalized Filipino World War II veterans, exempted from the numerical
limitations on immigrant visas, are before the current 111th
Congress of the United
States.
Indeed, on May 14, 2009, H.R. 2412, a
bill to exempt children of certain Filipino World War II veterans from the
numerical limitations on immigrant visas, was filed in the House of
Representatives by Ms. Hirono, Mr. Ambercrombie, Mr. Filner, Mr. Honda, Mr.
Faleomavaega, Ms. Bordallo, Mrs. Maloney, and Mr. Farr.
And
on
November 9, 2009, S.2757, a bill to authorize the adjustment of status for
immediate family members of persons who served honorably in the Armed Forces of
the United States during the Afghanistan and Iraq conflicts, and for other
purposes (which include a son or daughter who has a Filipino parent who was
naturalized pursuant to section 405 of the Immigration Act of 1990), was filed
in the Senate by Mr. Menendez, Mr. Durbin, Mr. Feingold, Mrs. Gillibrand, Mr.
Inouye, and Ms. Landrieu.
Thus,
both
House and Senate bills cover the exemption from direct numerical limitations on
immigrant visas for sons and daughters of Filipino World War II veterans
naturalized pursuant to section 405 of the Immigration Act of 1990 (8 U.S.C.
1440), which provided naturalization through active-duty service in the U.S.
Armed Forces during World War 1, World War II, Korean hostilities, Vietnam
hostilities, or other periods of military hostilities.
Differences
Between S.2752 and H.R.2412:
S.2757
(cited as the “Military Families Act”) is for immediate family members (parent,
spouse, child, son, or daughter) of persons who served honorably in the Armed
Forces during the Afghanistan and Iraq conflicts, but adds a son or daughter
under the family-based first preference (unmarried sons and daughters of
citizens) and third preference (married sons and daughters of citizens) who has
a Filipino parent who was naturalized pursuant to Section 405 of the
Immigration Act of 1990 (8 U.S.C. 1440).
So,
a son
or daughter of a Filipino World War 2 veteran, who was naturalized before the
Immigration Act of 1990, is excluded from the coverage of the Senate bill and
also of the House bill.
Since
the
rider on a son or daughter of a naturalized Filipino World War II veteran is
included in the bill primarily for military families of veterans who served in
Afghanistan and Iraq, it is easier to pass Congress, than H.R. 2412 (cited as
the “Filipino Veterans Family Reunification Act”), which is exclusively for
children of naturalized Filipino World War II veterans.
Moreover,
S.2757 provides for adjustment of status in the United States for a son or daughter
of a naturalized Filipino World War II veteran, (1) who applies for adjustment,
(2) is admissible to the United
States as an immigrant,
except for waivers
of some grounds of inadmissibility, and (3) is physically present in the United States.
H.R. 2412
does not require physical presence in the United States of a son or daughter
of a Filipino World War II veteran who was naturalized also pursuant to Section
405 of the Immigration Act of 1990. So, they may apply for an immigrant visa
through consular processing in the Philippines or elsewhere outside
the United
States.
Issues In Both S.
2757 And H.R. 2412 On Eligibility:
- S.2757 Does Not Require Relative
Petition:
S.2757, in its
section 2(a), states that the immediate family member must be admissible to the
United States as an immigrant; and its section 2(b) states that the immediate
family member must be of a (1)(A) living Armed Forces member, or (2)(B) a
deceased Armed Forces member if: (i) if the Armed Forces member died as a
result of injury or disease incurred in or aggravated by the Armed Forces
member’s service; and (ii) the alien applies for such adjustment within (I) two
years after the date of the enactment of this Act, if the death occurred prior
to the enactment date; or (II) two years after the death, if it occurred after
the enactment date.
Section 2(b)(2)
of S.2757 on a son or daughter of a naturalized Filipino World War II veteran
does not qualify whether the veteran-parent is alive or deceased, and does not
state a period for filing of the adjustment application.
Does S.2757
allow self-petition for adjustment of status of a son or daughter of a naturalized
Filipino World War II veteran, without prior relative petition filed by the
veteran –parent? Indeed, no requirement for relative petition is stated in
S.2757, only an application for adjustment of status.
If self petition
is allowed, then no Form I-130 relative petition is required from the
veteran-parent, whether alive or deceased. Currently, a Form I-130 relative
petition needs to be filed and approved before a son or daughter of a naturalized parent can adjust status in the United States.
Moreover, if the
petitioner-parent dies, the petition dies with the petitioner, unless an
approved relative petition is reinstated for humanitarian reasons.
H.R.2412 Requires Relative Petition:
The House bill
merely exempts children of certain Filipino World War II veterans from the
numerical limitations on immigrant visas under section 201(b)(1) of the
Immigration and Nationality Act, nothing more. So, the petitioning procedure of
filing and approval of a relative petition (Form I-130) under section 204 thereof
still applies.
Indeed, H.R.
2412 impliedly covers both adjustment of status in the United States
and issuance of an immigrant visa through consular processing, under current
Department of Homeland Security and Department of State procedures.
An open-ended
self-petition for adjustment of status by a son or daughter without prior
filing and approval of a relative petition by a naturalized Filipino World War
II veteran-parent would be most welcomed.
(The Author, Roman P. Mosqueda,
has practiced immigration law for over 20 years, and has been an advocate for
Filipino World War II veterans and their families for over two decades. For
comments e-mail to rpm_law@yahoo.com or
call (213)252-9481 for free legal consultations or visit his website at
www.MosquedaLaw.com)
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