Month: October 2012

With a looming election for a U.S. President in just a couple of weeks, the Filipino American community received breaking news from White House honoring the Filipino World War II veterans.  No new benefits were granted. A federal  Interagency Working Group was created on October 17, 2012 to address the issue in regards to the Filipino veterans denied applications. How will this new development impact the thousands of veterans who were unjustly denied their claims?

The 2009 Filipino Veterans Equity Compensation Fund

A few months after being elected into office in 2009, President Obama signed into law the American Recovery and Reinvestment Act  (ARRA) that included a provision creating the Filipino Veterans Equity Compensation Fund (FVEC) for Filipino  veterans.  This fund allowed veterans who are U.S. citizens to receive a one-time payment of $15,000 and non-U.S. citizens a one-time payment of $9,000. This compensation was granted in recognition of the extraordinary contributions made by the Filipino veterans. From 2009 to the present, there were 18,000 claims that were approved but there were several thousands that were also denied.

Processing System for Claims

The Department of Veterans Affairs in collaboration with the Department of Defense was tasked with determining eligibility for the FVEC. As more claims were approved in the process and so were denials also received by deserving veterans. The reason given for denials of application is that the names of the veterans were not on the Missouri List.

Unjust Reliance on the Missouri List

The National Personnel Records Center (NPRC) is home to the Revised Reconstructed Guerrilla Roster (RRGR), also known as the “Missouri List,” an official database of all personnel who served in the armed forces in the 20th century, which is housed in St. Louis, Missouri.  Many Filipino veterans who served in World War II are on this list.  The one major problem is that the Missouri List is incomplete.  On July 12, 1973, a disastrous fire at NPRC destroyed approximately 16-18 million Official Military Personnel Files.  Of those destroyed, 80 percent were Army personnel who were discharged from November 1, 1912 to January 1, 1960.  There were no duplicate copies of the record that were destroyed, nor were there microfilms created.  There were no indexes prior to the fire and in addition, millions of documents had been lent to the Department of Veterans Affairs before the fire occurred.  Therefore, a complete listing of the records that were lost in the fire is no longer available.  Nevertheless, the Department of Veterans Affairs continues to make the Missouri List a basis for the grant or denial of FVEC claims.
Secondary Evidence
Faced with a similar in issue in the early 1990s, the legacy Immigration and Naturalization Service (INS) initially relied solely on the Missouri list in adjudicating thousands of applications for naturalization of Filipino World War II veterans. But after two federal lawsuits, the legacy INS was ordered to accept proof of military service with documents from the executive department under which they served, including Philippine government records.

After several representations made and appeals filed for VA to accept other proof of military service, VA stood its ground. The Missouri list remained the sole source of determining eligibility.  While a significant number of appeals are pending with the VA, a federal lawsuit was filed by veterans with denied claims in 2010 against the VA. This case is still pending with the Northern District Court of California, De Fernandez et al v. Department of Veterans Affairs questioning the constitutionality of the process established to adjudicate claims for FVEC.

Honoring the Veterans

The White House Initiative on Asian American and Pacific Islanders, through its co-chair Chris Lu announced the creation of the Interagency Working Group comprised of the officials of the Department of Veterans of Affairs, Department of Defense and the National Archives and Record Administration.  The collaborative efforts of young Filipino Americans together with other Asian groups worked hard to get this far. But, there is only one task identified for the Interagency Working Group, that is, to analyze the “process faced by Filipino veterans in demonstrating eligibility for compensation in order to ensure that all applications receive thorough and fair review.”

We remain grateful to President Obama and for the Democratic leadership of Senator Inouye, Senator Akaka, Secretary Mineta and Representatives Honda and Filner, among others, for championing the veterans’ cause. It is the democratic leaders led by the incumbent president that initiated the FVEC and now recently created the Interagency Working Group. But also, they have to be reminded that Filipino World War II veterans who have denied claims and deprived of their just recognition are dying each day. After three years, the FVEC process needs no further analysis or review. It should be clear, by this time, that the VA need to change the process by accepting the fact that reliance on the Missouri list is erroneous and that secondary reliable proof of military service should be accepted. Time is of the essence.

(Tancinco may be reached at law@tancinco.com or at 1 888 930 0808 or at 1 415 397 0808).

One who marries a U.S. citizen and obtains a green card will be issued only a conditional resident status of two years. This two-year status is given if the marriage is less than two years. A petition must then  be filed to remove conditions of residence prior to the expiration of the status in order that the green card may be extended.

In a perfect marriage, the conditions are removed by filing a joint petition for removal of conditions with the U.S. Citizenship and Immigration Services. But what happens when there is a breakdown of the marital relationship prior to the second year anniversary of being issued the green card?

Debby and John were married in a civil ceremony in Manila. John, a U.S. citizen filed a petition for Debby as his spouse. When the immigrant visa application was approved, the couple moved to the United States to permanently reside in California. After a few months of living in the U.S., Debby gave birth to their son, Edward.

Subsequently, John had an affair with his co-worker at his place of employment. Debby discovered John’s infidelity and decided to return to Manila with their baby Edward. Debby’s green card was valid only for two years from the date it was issued. When she returned to Manila, she did not file for the removal of her conditions. Distraught with the breakdown of her marriage, she completely forgot about removing conditions of her residence or extending her green card.

After three years, Debby plans to return to the United States so her son Edward may study there. Debby’s green card is already expired.  How can she return to the U.S. with an expired green card?  Are there any steps that may be taken for her to get her green card extended? What are her options of returning to the United States?

Reason for the Two Years Validity

Those whose marriages were less than two year old at the time green cards were issued to the noncitizens are only given two years validity in status.  This provision was enacted in order to prevent marriage fraud. To remove the conditions of the residence, the non-U.S. citizen spouse must file a petition to remove conditions supported by proof that the marriage was entered into in good faith. This petition must be filed within 90 days period before the second anniversary of the non-citizen’s grant of conditional resident status.

The U.S. Citizenship and Immigration Services (USCIS) may remove the conditions and grant a 10-year validity of the green card if it is satisfied that the marriage was not entered for purpose of procuring a noncitizen’s admission as an immigrant.

Automatic Termination

If the green card holder fails to file a petition for removal of conditions either jointly with his U.S. citizen spouse or through waiver, the green card status is automatically terminated.

Once the green card is automatically terminated and the noncitizen spouse is in the United States, removal proceedings will be instituted against the noncitizen. The latter will have the opportunity to file a petition for the removal of conditions and if it is denied, the immigration court may review the denial. The noncitizen risks being deported if he is not able to convince the court that he merits a removal of conditions and that his marriage is entered into in good faith.

Those whose marriages were dissolved before the second year anniversary either through annulment or divorce may still have the conditions of residence removed by filing a timely petition to remove conditions with the USCIS. A waiver of the joint filing of the petition to remove conditions may be filed solely by the divorced noncitizen. The USCIS may not terminate the resident status because the marriage is no longer viable and the couple is no longer living together. As long as the marriage was not fraudulent or a sham marriage from inception, USCIS may approve the remove of conditions of residence and will extend the green card status of the noncitizen spouse.

Debby’s Case

Prior to the second year anniversary of her green card, Debby should have filed on her own the Petition to Remove Conditions on her residence. Despite her separation from her U.S. citizen spouse, she could have easily proven that her marriage was entered into in good faith. Considering that they have a child together, proving the validity of the marriage should not have been difficult.  

Debby will need a visa to re-enter the United States. If Debby and John reconciles, a late joint filing of the petition to remove conditions is allowed if filed within reasonable time. This joint petition must include an explanation stating the reason for the delay in filing. As an alternative, John may re-file for a new petition for her spouse. Assuming, that no reconciliation occurs, Debby must consider the various nonimmigrant visa options to enter the United States. Having failed to take appropriate action in a timely fashion she is now facing the harsh consequence of a terminated resident status.

(Tancinco may be reached at law@tancinco.com or at 887 7177 or 721 1963 or visit her website at tancinco.weareph.com/old)