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President Bush Signs the McCain Amendment Restoring Refugee Status to the Families of Re-Education Camp Detainees
by Marc Ellis

On May 30, 2002, President Bush signed a renewal and extension of the McCain Amendment, Public Law 107-185. The law provides derivative refugee status to the adult sons and daughters of Vietnamese re-education camp detainees who meet the following criteria:

  1. They are the adult (over 21 years of age) son or daughter of a national of Vietnam who:
    • was formerly interned in a re-education center or is a widow of a formerly interned re-education camp detainee in Vietnam; OR
    • was accepted for resettlement in the U.S. as a refugee or an immediate relative immigrant under the Orderly Departure Program (ODP) sub-program for re-education camp detainees, or via the U.S. Consulate General in Ho Chi Minh City; AND
      1. is presently maintaining a residence in the United States, or whose surviving spouse is presently maintaining such a residence, or
      2. is awaiting departure formalities from Vietnam or whose surviving spouse is awaiting departure formalities; AND
  2. They were unmarried as of the date of their parent's approval for refugee resettlement in the U.S. or immediate relative immigrant visa issuance. The new amendment will expire on September 30, 2003. As of June 15, 2002, the US Consulate in Ho Chi Minh City (HCM/Saigon), is still awaiting guidance from Washington, before they can begin processing cases. I have enclosed the HCM Consulate Fact Sheet on the McCain Amendment at the end of this article.
Background on the McCain Amendment:

On April 29th and 30th, 1975, an immense tragedy was beginning in Vietnam. After taking Saigon, the victorious North Vietnamese Army began a systematic campaign of vengeance against former members of the South Vietnamese armed forces. In the months that followed, tens of thousands of identified former South Vietnamese soldiers and airmen were executed or sent to re-education camps.

An exodus of refugees in small fishing boats took sail into the South China Sea, rather than lose husbands, fathers, brothers and sons to the communist re-education camps. It is estimated that more than two hundred thousand Vietnamese "Boat People" eventually found their way to the United States through a gauntlet of refugee camps in Thailand, Malaysia, and the Philippines.

Of those who stayed behind, some were able to come to the US as refugees and derivative refugees through the State Department's "Orderly Departure Program", "ODP".

Prior to April, 1995, the unmarried adult sons and daughters of re-education camp detainees had been allowed to process as derivative refugees under ODP, if they were accompanying a refugee parent, or were following to join that parent. But the State Department changed its policy in April, 1995. Perhaps the change was part of an effort to move toward normalization of relations with Vietnam and close the refugee admissions program. Whatever the reason, after April 1995, the unmarried sons and daughters of re-education camp detainees were denied admission to the US as derivative refugees.

In 1997, Senator John McCain (R-Az), sponsored a bill which later became law, that restored derivative refugee status for those affected by this change in policy. However, in implementing the new law, the State Department continued to deny admission to two groups of persons who should have otherwise qualified, the unmarried adult sons and daughters of widows or widowers of re-education camp prisoners, and the unmarried adult sons and daughters of re-education camp detainees who had been processed and settled into the U.S. as immigrants, rather than as refugees.

Senator McCain remarked on the floor of the Senate in June, 1997, that the Department of State had interpreted his amendment "...so as to exclude the very people to whom the provision was targeted...".

In 1998, Congress added language which explicitly included the groups who were being denied admission by the State Department. Former President Clinton signed the law on May 1st, 1998. That law expired September 30th, 1999. Now, President Bush has renewed the program until September 30th, 2003.

Formal notice was required to be given to eligible applicants by the US Consulate in Vietnam. Unfortunately, the Vietnamese government would not allow notice to be given, except through their official channels. All communications between the US Consulate and potentially eligible applicants had to take place using Vietnamese government intermediaries. So many eligible people never learned of the program. Since 1999 however, the Vietnamese Government has agreed to allow publication of notice by DOS in the Vietnamese press.

It is important to note, that the McCain Amendment appears to be unaffected by the August 1998 INS Guidelines on Derivative Refugee status. Eligible beneficiaries are considered refugees of special humanitarian concern, as defined by Section 207 of the I.N.A.

A simplified Fact Sheet provided by the Refugee Section of the HCM Consulate in Vietnam is reprinted below, along with an application form and the actual text of the law itself.

McCain Amendment Processing Fact Sheet

On May 30, 2002, the revised and expanded McCain amendment was signed by President Bush and became Public Law 107-185.

Eligibility

Below is a simplified explanation of the McCain Amendment. All applications are reviewed on a case-by-case basis to determine the applicability of the law. For more detailed information on the law, see the links at the end of this page.

The McCain Amendment provides that certain sons or daughters of former Vietnamese re-education center detainees are to be considered refugees of special humanitarian concern and may be eligible for resettlement in the U.S. if they meet the following criteria:

  1. They are the adult (over 21 years of age) son or daughter of a national of Vietnam who:
    • was formerly interned in a re-education center or is a widow of a formerly interned re-education camp detainee in Vietnam;
    • was accepted for resettlement in the U.S. as a refugee or an immediate relative immigrant under the Orderly Departure Program (ODP) sub-program for re-education camp detainees, or via the U.S. Consulate General in Ho Chi Minh City; and
      1. is presently maintaining a residence in the United States, or whose surviving spouse is presently maintaining such a residence, or
      2. is awaiting departure formalities from Vietnam or whose surviving spouse is awaiting departure formalities; AND
  2. They were unmarried as of the date of their parent's approval for refugee resettlement in the U.S. or immediate relative immigrant visa issuance.
Application procedures

In order to submit an application, please print out and complete the McCain Amendment Program Application Form and mail it to us directly at:

Refugee Resettlement Section (RRS)
US Consulate General - Ho Chi Minh City
51 Nguyen Dinh Chieu, District 3
Ho Chi Minh City, Vietnam
OR Refugee Resettlement Section (RRS)
US Consulate General - Ho Chi Minh City
Department of State
7160 Ho Chi Minh City Place
Washington, DC 20521 - 7160

Deadline for Processing

The McCain Amendment will expire on September 30, 2003. Processing of all applicants must be completed by that date. To insure sufficient time for processing, we suggest that all requests for consideration under the McCain program be submitted before April 30, 2003. We cannot guarantee that we will be able to process to completion those applicants that contact us after April 30, 2003.

Text of the Law

SECTION 1. ELIGIBILITY FOR REFUGEE STATUS.

  1. ELIGIBILITY FOR IN-COUNTRY REFUGEE PROCESSING IN VIETNAM. -- For purposes of eligibility for in-country refugee processing for nationals of Vietnam during fiscal years 2002 and 2003, an alien described in subsection (b) shall be considered to be a refugee of special humanitarian concern to the United States (within the meaning of section 207 of the Immigration and Nationality Act (8 U.S.C.1157)) and shall be admitted to the United States for resettlement if the alien would be admissible as an immigrant under the Immigration and Nationality Act (except as provided in section 207(c)(3) of that Act).
  2. ALIENS COVERED. -- An alien described in this subsection is an alien who--
    1. is the son or daughter of a qualified national;
    2. is 21 years of age or older; and
    3. was unmarried as of the date of acceptance of the alien's parent for resettlement under the Orderly Departure Program or through the United States Consulate General in Ho Chi Minh City.
  3. QUALIFIED NATIONAL. -- The term 'qualified national' in subsection (b)(1) means a national of Vietnam who--
    1. (A) was formerly interned in a re-education camp in Vietnam by the Government of the Socialist Republic of Vietnam; or
      (B) is the widow or widower of an individual described in subparagraph (A);
    2. (A) qualified for refugee processing under the Orderly Departure Program re-education subprogram; and
      (B) is or was accepted under the Orderly Departure Program or through the United States Consulate General in Ho Chi Minh City--
      1. for resettlement as a refugee; or
      2. for admission to the United States as an immediate relative immigrant; and
    3. (A) is presently maintaining a residence in the United States or whose surviving spouse is presently maintaining such a residence; or
      (B) was approved for refugee resettlement or immigrant visa processing and is awaiting departure formalities from Vietnam or whose surviving spouse is awaiting such departure formalities.

Purpose of the Law

As described in the House of Representatives report on the bill,

The Act extends the time period that the State Department and the Immigration and Naturalization Service (INS) have to process eligible adult, unmarried sons and daughters through fiscal year 2003. It removes the date of April 1, 1995, imposed by the McCain Amendment, so that the cases of sons and daughters processed after April 1, 1995, are adjudicated in the same manner as those cases processed prior to that date. The Act permits the INS to reconsider cases that were previously denied for failure of proof of family relationship, rather than just those cases that were denied based on the issue of co-habitation with the principal alien. Finally, the Act expands eligibility to adult, unmarried sons and daughters whose principal parent has died, but whose surviving parent is maintaining a residence in the United States or is awaiting departure formalities from Vietnam.
For more information and the full text of the report as a .PDF file, click here (you must have Adobe Acrobat Reader).

For the McCain Amendment Program Application Form, click here (you must have Adobe Acrobat Reader).


About The Author

Marc Ellis practices immigration law in New Orleans, LA. He earned his Juris Doctor Degree at the University of Alabama. He is an AILA member and a member in good standing of the Louisiana State Bar Association. He can be reached at ellis@nternet.com.


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