NEW LAW WILL PROTECT SURVIVING FAMILY MEMBERS

On October 20, the Senate followed the House of Representatives in voting to protect surviving family members when either the petitioner or the principal beneficiary of a petition dies. President Obama is expected to sign this legislation shortly.  We link to the bill (H.R. 2892) from our "Immigration Legislation" page at

http://shusterman.com/toc-leg.html#3

Presently, the law provides that when the petitioner or the principal beneficiary dies, so does the petition.  Typically, if the beneficiaries are present in the U.S., their applications for adjustment of status are denied and they are placed in removal proceedings.

There are few options for surviving relatives:

For example, there is a section of the law which provides that a surviving spouse of a U.S. citizen can self-petition for permanent residence, but only if the marriage occurred at least two years before the petitioner's death.

There is also a regulation which provides that where the petitioner of a family-based petition dies before the beneficiaries of the petition became permanent residents, the beneficiaries may request that the USCIS reinstate the petition for "humanitarian" reasons.

* WHO WILL BENEFIT FROM THE NEW LAW?

Not only does the new law eliminate the infamous "widow penalty", it does so much more! 

When either the petitioner or the principal beneficiary dies in a wide variety of instances, the law acts to protect the surviving family members:
 
 1) Parents, spouses and children of a U.S. citizen with pending or approved petitions;
 2) Beneficiaries, principal or derivative, of pending or approved family-based petitions;
 3) Beneficiaries, principals or derivative, of pending or approved employment-based petitions;
 4) Beneficiaries, principal or derivative, of pending or approved asylee/refugee relative petitions;
 5) Nonimmigrants entitled to "T" (trafficking victims) or "U" (crime victims) status.

Since the waiting times for family-based and employment-based preference can range up to between five and 22 years, often petitioners and principal beneficiaries die before the beneficiaries of the petition can obtain permanent residence. 

In explaining how the new law would operate, let's use the following examples:

 * EXAMPLE #1 - Family-Based Petition

Ms. Santos' sister, a citizen of the U.S., petitioned for her over 20 years ago.  At that time, her children were four, two and one year of age.  Ms. Santos and her husband work as technicians in the U.S. By the time her priority date became current, her children were 24, 22 and 21.  The INS took two years to approve the visa petition.  Since the length of time that the visa petition was pending can be subtracted from the age of her children under the Child Status Protection Act, the "immigration ages" of her children are 22, 20 and 19.  Therefore, the youngest two are still considered to be children for purposes of adjustment of status, and the older child must wait for a final resolution of the proper interpretation of CSPA's "automatic conversion" clause.  Ms. Santos, her husband and her two youngest children all apply for adjustment of status under section 245(i). However, shortly before their interview takes place, her U.S. citizen sister dies.  Under current law, Ms. Santos only remedy would be to apply for "humanitarian" reinstatement of her petition from the USCIS, an "iffy" proposition.  Under the new law, she and her family (except possibly her oldest child) would be protected as "survivors" and would be allowed to continue with their applications for adjustment of status despite the death of her sister.

Assuming that Ms. Santos and her family members are all eligible for adjustment of status, the only way their applications can be denied is if the USCIS denies the visa petition by determining that its approval "is not in the public interest".

Also, since Ms. Santos' sister has died, another sponsor for an affidavit of support is needed. 

 * EXAMPLE #2 - Same Scenario as Above, but Ms. Santos and her Family are Abroad

If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS.  The family's only recourse is to request a reinstatement of the visa petition on "humanitarian" grounds.

 * EXAMPLE #3 - Same Scenario as Above, but Ms. Santos, not her Sister, Dies

If Ms. Santos dies before she and her family are able to adjust status, the new law provides that the petition remains approved unless the USCIS determines that this "is not in the public interest". Her husband and the youngest two children can adjust their status to permanent residents.  This represents a clear departure from previous laws which would have resulted in the denial of adjustment of status applications for her husband and children, and placing them under removal proceedings.

Is there any remedy for the family under this scenario if Ms. Santos' family had remained abroad?  Unfortunately, the answer to this question is "no".

 * EXAMPLE #4 - Employment-Based Petition

Dr. Kumar is a physician born in India.  His wife and daughter reside with him in the U.S. He is in H-1B status.  His wife and daughter are in H-4 status.  Dr. Kumar completed his medical residency in the U.S. on a J-1 visa.  Then, for three years, he worked in a medically-underserved area in H-1B status.  In 2006, his employer submitted a PERM application on his behalf.  It was approved in the Spring of 2007.  In July 2007, when all the employment-based numbers became current, Dr. Kumar's employer submitted an EB-2 visa petition on his behalf.  Simultaneously, Dr. Kumar, his wife and daughter all applied for adjustment of status.  Then his priority date retrogressed.  In 2009, Dr. Kumar was killed by a drunk driver.  Under present law, the visa petition would be revoked.  Under the new law, Dr. Kumar's wife and daughter would be permitted to continue with their applications to adjust status.  The visa petition could only be revoked if the USCIS determined that its continued approval would not be "in the public interest".

* ELIMINATION OF THE "WIDOW PENALTY" 

What follows is some advice for surviving spouses and children under the portion of the new law
which relates to widows of U.S. citizens and their children:

 * How Can I Benefit from the New Law?

Under the new law, all surviving spouses can apply for themselves and their children for green cards.  The new law eliminates the two-year marriage requirement for self-petitions.

If you are physically present in the U.S., file an I-360 self-petition together with an I-485 application for adjustment of status.

If you reside abroad, file an I-360 self-petition and follow the normal immigrant visa procedures.

In either case, it is incumbent upon you to submit the I-360 within two years of the law's passage, and to demonstrate that the marriage was bona fide.  Include wedding photos, proof of joint assets, etc.

If your spouse dies more than two years after the law's enactment, your I-360 must be submitted within two years of your spouse's death.

There is no affidavit of support required. However, you must demonstrate to the government that you are not likely to become a public charge.

Also, if you remarry, you will lose your eligibility.

 * How Can My Children Benefit from the New Law?

Your unmarried children may be included in your I-360 self-petition. 

Remember that although the law defines "children" as unmarried and under 21 years of age, the Child Status Protection Act (CSPA) may allow your child's age to be "frozen".  As a general rule, if the I-130 or I-360 petition was submitted prior to your child's 21st birthday, they will continue to be considered a child no matter how old they are when the USCIS decides their application for a green card as long as they remain single.

For more information about CSPA, see our "Child Status Protection Act FAQ" at

http://shusterman.com/cspa.html#3

 * CONCLUSION

The new law will provide immigration benefits to "survivors" in various types of immigration cases where either the petitioner or the principal beneficiary dies before the other family members are able to become permanent residents. 

However, the law is complex, and the extent of its benefits will not be known until after the USCIS and the State Department promulgate regulations, or issue memos, explaining how they plan to implement the new law.  

Comments

[JP Sarmiento]

This would be really helpful to those with weak "humanitarian reinstatement" cases. Hopefully the provisions would eliminate the need to do those anymore. Thanks for the update.

[Vincent Martin]

Why the distinction between AOS and consular processing? "If Ms. Santos and her family are abroad on the day that her sister dies, the petition will be revoked by the USCIS. The family's only recourse is to request a reinstatement of the visa petition on "humanitarian" grounds."

Any hope for people abroad?

[Maundu]

This is pure hypocracy, does it make sense to wait for the retrogressed numbers for 10yrs. The goverment can do better than just giving a fish. Free us up to enjoy freedom like everyone else, release visa numbers from previous years to flow down to recipients!

[Aks S]

I hope this gets signed soon by the President for it to become effective.

One of the primary reasons I chose to make my home country is for the chances it offers to my family.

When I saw traffic accidents, it occurred to me what would happen to my family if I got knocked over? And I have been knocked out once but luckily survived.

Hope that even if someone is not as lucky at least there would be the comfort that the family would continue to stay and pusue the American Dream.

Thanks Mr Shusterman for all the services you provide to the voiceless immigrants. Would are your views about legally challenging the country of birth based discrimination for visa limits. Can it be challenged because its contrary to the concept and law stating Equal Employment Opportunity.

[Chris Duran]

What about a widow or survivor who needs a waiver? If the law is going to assume the fiction that the petition remains valid after the death of the petitioner, then it seems fair to allow the survivor to use same fiction as a substitute for a qualifying relative for purposes of a hardship waiver.

[Bojana Jovic]

My father was green card holder and he petition for me (in 1998), unmarried daughter over 21 years old. Petition 130 is approved. I am in the USA and I patiently waited for more than 10 years and before my number came my father suddenly died.
Will I benefit from the new law as surviving family member.
Sincerely Bojana

[Carl Shusterman]

Yes!

[Cool Mady]

My dad was in H1B in 2002 he passed away & my mom was on H4 and she overstayed in USA. will she be benefited by this law.

[Simon]

my mother filed for me and my 4 other siblings in 1992. At the time all of us over the age of 21 yrs old. Unfortunately she passed in 1997. However Our case was approved before her passing and before our priority date became current. Will my siblings and I benefit from this new law given the case was filed 17 yrs ago?

[Donni Fox]

Carl, my Brother in law (primary applicant) was killed in a car accident over an year and half ago. He left a fiancee and 3 children behind. Their USCIS application was just approved last week. Will this new law help them finally get the US then? Thanks,

[Ann]

hello! just want to ask if the new law only applies to those beneficiary who are already in US?thanks!

[Nataly Aksyonov]

Does the new law cover widows of US citizens or LPRs as well?

[Anna]

I have siblings who received approval notice from USCIS in year 2005. They were petitioned by our father in 1997. Unfortunately, our father passed away in year 2006. Year 2009, my siblings received a letter from the USCIS for their US VISA processing. Me, my mom, my sister, and my brother are here in US waiting for our siblings for long time. Will the new law, help our siblings to come over? Thank you...

[GG]

Hello,
my father died 20 years ago, i have an approved petition all we need was to send our affidavit support letter but my father died. Now i am 22 years old. I still have my letter of approval? can someone help me? Will this law help me? Thank you.

[john]

My Dad was a primary beneficiary of my Grandmother's Petition
and was categorized as F3 Petition which is Family Petition
since 1993

My Dad died last july 2008 while my Grandmother who was the petitioner also died last june 2009

On April 1020, we received the third notice paper regarding the petition and i think its for processing our papers for visa and we need to fill up some documents.

My question is, since we were categorized as family petition, do we still have the chance to migrate given the situation that we have?

[Just Call me: R]

I have a friend from El Salvador. His father petitioned for him and 2 other siblings by using the I130 "Family Petition Form" before June 30, 2001 and have an approval notice. His father who was the petitioner passed away almost 2 years ago. He has no other immediate relative whom is either a U.S. Citizen or a Permanent Resident whom can qualify as the substitute petitioner. However, his father was re-married with a U.S. Citizen years before he passed away.

My question is: Can his surviving Step-Mom apply to be the substitute petitioner for him and his siblings if she qualifies financialy?

They're all over 21 years of age.

Thank You.

[Vetrano & Vetrano]

Time to time many changes are required in the present family laws as divorce, child custody, collaborative law etc. And also court keep doing the same. I have gone through many blogs and sites about family law, One site which I found good is http://www.vetranolaw.com you should check it once.

[Ramakrishna]

Dear Sir,
I'm a US citizen who filed for his brother's immigration. His I-130 has been approved in 2005. Based on the current waiting for India he would likely get the chance in 2013/14. Unfortunately he recently met with an accident and passed away. Would i still be able to immigrate my brothers family to the US? What happens now? Appreciate your answer very much.

Kind Regards
Ramakrishna

[jaculine]

hi,
i am a US citzen i have filled I-130 for my brother in 2004 and i recived approval notice may 2010. at the time when i filed I-130 my brother was 17 years old and now he is 23 is he still legal to come to US?
thanks
jaculine

[orlando lavilla]

my family and I were petitioned by my father a filipino war veteran and US citizen since 1993. unfortunately he passed away 1994. we are residing in the philippines and just recently we received some papers from NVC. do we have a good chance to immigrate under this law?

[merle guiang]

My father was a filipino WWII veteran and a US citizen. He resided in US for more than ten years with his 2nd filipina wife. In 2004, he decided to stay for good here in the Philippines and stayed with us until he died On August 14, 2006. My 2 siblings & I (all married)were petitioned by our father since 1993 and for 17 years of waiting it was approved by NVC. Are we still eligible for the approved petition?

[charlotte]

hi. i have pending adjustment of status with uscis. however, in a very unfortunate circumstance, my husband who is my petitioner died in a cardiac arrest and we were only married for 5 months.
am i obliged to inform uscis about his passing? will they deport me?
thank you.

[Md Ibrahim]

My father applied for us(spouse & Children), he died in 1999 and have compensation as per surrogate court degree. Can we get the benefit to enter USA under this new law.
Thanks & Regards,
Md. Ibrahim
eldest son of deceased Anwar Ahmed,
Dhaka, Bangladesh.
alternate EMail

[Ed Caoagdan]

My U.S. Citizen father, 1-130 petition my unmaried brother who is residing in the Philippines. Our father passed away a year and half ago and now my brother received an approval to start paying Affidavit of Support, I am also U.S. Citizen and live in the U.S. for almost 20 years now. My Question is, for humanitarian reinstatement reasons, can I take over my father by filing affidavit of support for my brother? What should do to make it legal or valid? What should I do? when I send I-864, affidavit of support and necessay supporting documents, Do I need to send my Father's Death Certificate or a letter explaining that petitioner is dead and I am taking over that is why I am filing affidavit of support for my brother. Please some intelligent guy help me!! Send it to my email Address, Magellan_8@Comcast.net. Thank you

[puma shoes]

The blog was absolutely fantastic!