Michael Phulwani Articles

NEW LAW PROTECTS SURVIVING FAMILY MEMBERS

New Law Protects Surviving Family Members

By

Michael Phulwani, Esq.

On 10/28/09, President Obama signed H.R. 2892 into law, making a New Law and Ending Widow Penalty. This law, among others, contained several immigration provisions, including extending the non-minister religious worker, the "Conrad 30", the EB-5 and the E-verify programs through September 30, 2012. Additionally, the new law also provides immigration benefits to "survivors" in various types of immigration cases where with the petitioner or the principal beneficiary dies before the other family members, are able to obtain permanent resident status in the U.S.

The two important provisions of the new law are discussed in detail below:

WIDOWS/WIDOWERS OF AMERICAN CITIZENS AND THEIR CHILDREN

The new law removes the two-year marriage requirement from the current law that permits widows and widowers of U.S. citizens to file a self-petition for themselves and their children, while retaining the requirement to show a good faith marriage. It will allow a widow/widower who was married less than two years at the time of the citizen spouse’s death to file an I-360 self-petition form within two years of the law’s passage. This self-petition can be filed together with an Application for Adjustment of Status to Lawful Permanent Resident (Form I-485) if the widow/widower is in the United States pursuant to a lawful entry. If the widow/widower is outside the United States, he or she can apply for an immigrant visa following the I-360 approval. The law does not require that a petition have ever been filed by the U.S. citizen spouse.

In cases where the widow/widower was already the beneficiary of an I-130 Petition for Alien Relative filed prior to the citizen petitioner’s death, it is anticipated that such I-130 petitions can be considered automatically converted to an I-360 self-petition.

With regard to the Affidavit of Support (I-864), which is usually executed by the petitioner, the new law removes the requirement that another person file an affidavit of support on behalf of the immigrant. Form I-864, Affidavit of Support, will not be required of self-petitioners. However the widow/widower must still prove that he/she is not likely to become a public charge, based on a totality of factors listed under the provisions of the Immigration & Nationality Act (INA).

The new law also allows unmarried children of the widow/widower to be included on Form I-360 that is filed by the widow/widower. Those children who are under the age of 21 years at the time the petition is filed should be eligible, as well as those children whose age determination is calculated the Child Status Protection Act (CSPA).

The new law does not cover widows/widowers of U.S. citizens who have remarried.

The new law permits the filing of a self-petition on Form I-360 within two years of the law’s enactment. Because the law was enacted October 28, 2009, the deadline is October 28, 2011. After this two-year period, a petition must be filed within two years of the citizen’s death.

SURVIVING RELATIVES OF OTHER FAMILY-BASED & EMPLOYMENT-BASED CASES

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, who are listed below:

1) Parents, spouses and children of a U.S. citizen with pending or approved petitions (IR);

2) Beneficiaries, principals or derivatives, of pending or approved family-based petitions (F1, F2A, F2B, F3, F4);

3) Beneficiaries, principals or derivatives, of pending or approved employment-based petitions (EB1, EB2, EB3, EB4, EB5);

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. 

The NEW LAW adds a new section to the Immigration and Nationality Act, which allows petitions that were filed prior to the death to be adjudicated despite the death of the petitioner or the principal immigrant in cases where the beneficiary or derivative beneficiary resided in the United States at the time of the death and continues to reside in the United States.

For instance, the petitioner of a I-130 petition dies and the beneficiary is in the U.S., the new law allows the beneficiary to get a green card based on this petition. However, if the beneficiary was outside the U.S. at the time of death of the petitioner, then he/she will not be covered under the new law. In such a situation where the beneficiary is outside the U.S., if the petition was approved prior to the petitioner's death, then the beneficiary may request for 'humanitarian reinstatement' under the current law.

Another situation would be where the principal beneficiary of a family petition (I-130) or employment petition (I-140), dies but his/her family members are in the U.S. Prior to the passage of the new law, the I-130 or I-140 visa petition would die automatically and nothing could be done to reinstate it. There were no exceptions. But under the new law, the family members of the principal beneficiary who are already in the U.S., would be covered under the new law and could still get their green cards under the new law. However, if the family members of the principal beneficiary are outside the U.S. when the principal beneficiary dies, then they are not covered by the new law and the visa petition would also die.

Applicants applying for green cards under this provision of the new law, require an Affidavit of Support (Form I-864) to be executed by a substitute sponsor.

The new 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.