Death of Immigration petitioner does not kill the case! By Jonathan Willmoth 1

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1 Death of Immigration petitioner does not kill the case! By Jonathan Willmoth 1 For many years, the law regarding the death of a petitioner in an immigration case resulted in the end of that claim, except in two circumstances: where the petitioner was a United States citizen spouse, and the couple had been married for two years prior to the death of the USC spouse, or where humanitarian reinstatement of the petition was approved. The two-year marriage requirement is often referred to as the Widow Penalty. The law has now changed, to do away with the widow penalty, by removing the requirement that they be married for at least two years before the death of the spouse in order to continue benefits to the surviving spouse. 2 In the situation where the US citizen spouse did not file a petition on behalf of the Beneficiary prior to their death, a self-petition I-360 (to give them permanent residence without an I-130 petition) may be filed by the surviving spouse, within two years of the death of the US citizen spouse. Where the surviving spouse died prior to 10/28/2009 without filing a petition, or a spousal petition was denied prior to 10/28/2009 based on the death of the US citizen spouse, the I-360 petition must have been filed prior to 10/28/ Automatic Conversion Where an I-130 spousal petition is pending when the US citizen spouse died, that I-130 petition is automatically converted to a pending I-360 self-petition, the approval of which requires that the spouse not have remarried and that the Beneficiary is otherwise eligible. The criteria for eligibility are: that the deceased spouse be a United States citizen, and had already filed an I-130 petition on behalf of the beneficiary; that the marriage was bona fide; and that the couple were not legally separated at the time of the petitioner s death Immigration and Nationality Act (INA) section 201(b)(2)(A)(i), as amended by section 568(c) of the FY 10 DHS Appropriations Act Public Law , enacted on October 28, See Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l)of the Immigration and Nationality Act, PM , Dec. 16, 2010.

2 One key benefit to this automatic conversion is that the children of the widows/widowers are eligible for derivative classification, which is not the case under trraditional humanitarian reinstatement. Motion to Reopen In the situation where the spousal petition, green card application, or even waiver application was previously denied under the law in effect before October 28, 2009, and the Beneficiary was not granted humanitarian reinstatement, the surviving spouse can file a motion to reopen their denied case, if 204(l) would now allow approval of the petition or application. This kind of motion is also possible for those who don't fall under the widow modifications, but instead are covered under 204(l), as discussed below. Fiances Fiances can be granted a K-1 visa (their children are K-2s) to enter the US for the express purpose of marrying a US citizen and apply for permanent residence here within 90 days of entry. If they do marry within 90 days, the K-1 visa holder may proceed with their green card application, even if their US spouse dies before filing, or while the application is pending. Neither K-1s, nor their children need any additional petitions in order to adjust their status. K-3 visa holders are those who were married prior to coming to the United States, but are allowed to enter before their I-130 immigrant visa petition is approved. If they enter on their K-3 visa, and their US citizen spouse dies, their I-130 is automatically converted to an I-360, the same as any other I-130 spousal petition beneficiary. Remarriage US CIS currently takes the position that if the surviving spouse remarries, they are no longer eligible for benefits under this change in law. 4 There is a contrary argument being formulated that the language of 204(l) and 201(b)(2)(A) conflict as to whether the relationship should be reviewed only at the time of the citizen s death, without regard to subsequent events such as a remarriage. At present though, the position of US CIS is quite clear. 5 4 See 201(b)(2)(A)(i). 5 See Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l)of the Immigration and Nationality Act, PM , Dec. 16, 2010.

3 Conditional Residence Whenever a couple are married less than two years at the time of the foreign spouse being approved for permanent residence, they are given conditional permanent residence, for only two years. 6 However, where the petition and green card are approved under 204(l) or the widow benefit, the fact that the marriage was not two years old at the time of approval for residence, does not result in that residence being subject to the two-year conditions. Investors (those investing $1million, or $500,000 in an underserved area) also are granted two-year conditional residence. 7 Their beneficiaries benefit under 204(l) by being permitted to continue with the process. However, unlike family-based cases, they will be conditional residents, and if so, must meet all the requirements for removal of those conditions, which involve the creation of jobs for US citizens, etc. as demonstration of the success of their investment. INA 204(l) 8 In addition to the law being amended to kill the widow penalty, a new section of the Immigration and Nationality Act (INA) was created, 204(l), which provides a host of benefits to a variety of beneficiaries and derivative beneficiaries, including spouses of deceased permanent residents, who are not covered under the widow penalty amendment. In order to be eligible for benefits under 204(l), the beneficiary must have resided in the United States at the time their relative died, and continue to reside in the US on the date their petition was adjudicated. * Who is covered The following are types of cases which can benefit under 204(l): Beneficiaries of pending or approved* family petitions filed by US citizen immediate relatives (children and parents - depending on age and marital status); principal and derivative beneficiaries of pending or approved* family-based petitions for siblings, spouses of LPRs, children of LPRs, and married or over-age children of US citizens; derivative beneficiaries of 6 INA INA 216A. 8 Section 568(d) of the FY 10 DHS Appropriations Act created INA section 204(l).

4 pending or approved* employment-based petitions; beneficiaries of pending or approved* I-730 refugee/asylees relative petitions, derivative asylees; and some T or U visa holders (T visas are for victims of trafficking, and U visas are for victims of other serious crimes). *For all the above cited, please note that only where they also have a pending adjustment of status (green card) application pending at the time of the death, are they eligible under 204(l) with an approved visa petition. In addition to simply being in one of these categories, beneficiaries also have to meet any other eligibility requirements for obtaining permanent residence. The one caveat is that they may apply for a waiver of the grounds of inadmissibility (there are a lot of them - see INA 212a-zzz) where the deceased petition or principal applicant is the (or one of the) qualifying relatives needed for the waiver. CSPA The Child Status Protection Act (CSPA) grants child beneficiaries of immigrant petitions the ability to remain children for purposes of obtaining residence, even when they age out, by turning 21, where they remain unmarried. For immediate relatives, their age is fixed on the date the petition is filed, regardless of how long it takes for them to obtain residence (though there is a requirement that they proceed within a year of their visa becoming available). For children of residents, or children of citizens who are over 21, their age is determined through a more complex analysis. The key here is that the death of the petitioner in no way alters the way in which the CSPA is applied. That is, if they are under 21 under the CSPA, it makes no difference whether the petitioner is alive today, provided a petition was filed before the death of the petitioner. Another key consideration is how this impact derivative beneficiaries when the principal dies.if the CSPA would make them eligible for visas, then it makes no difference whether the principal beneficiary has deceased. This is true in both family and business-based cases. 9 Affidavit of support Under any of these survivor benefits or humanitarian reinstatement, the affidavit of support requirement continues, unless the Beneficiary is exempted as having earned 40- quarters of employment. Because the Petitioner is required to file an affidavit of support on behalf of the Beneficiary, and the Petitioner has died, someone else will need to file one on his or her behalf. Those who are allowed to be a substitute sponsor are US 9 USCIS Quarterly national Stakeholder Engagement dated June 29, 2011.

5 citizen or LPR close family members such as: spouse, parent, mother-in-law, father-inlaw, sibling, child at least 18 years of age, son, daughter, daughter-in-law, son-in-law, sister-in-law. The substitute sponsor must show that they earn 125% of the federal poverty guidelines for their family size, including the addition of the Beneficiary. Humanitarian Reinstatement Humanitarian Reinstatement exists to help family-based beneficiaries (does not apply in business-based cases). 10 The standard is whether revocation of the petition is inconsistent with the furtherance of justice. Traditionally, whenever a petitioner on dies, the approved petition is automatically revoked, and any pending petition would be terminated. Additionally, humanitarian reinstatement doesn t apply to derivative beneficiaries, only the principals. The regulations have for some time allowed INS and then US CIS to exercise discretion and reinstate the revoked petition for humanitarian reasons. Since 204(l), US CIS takes the position that IF the family-based petition would be approved under 204(l) if the petition were still pending, then it should be eligible for humanitarian reinstatement as well. 11 Without need of demonstration of humanitarian factors. For principle beneficiaries with approved visa petitions, but whose petitioner died before they could file a green card application, Humanitarian Reinstatement is all that exists for them. According to the memo, if someone applied for Humanitarian Reinstatement and was denied before October 28, 2009, they can file a motion to reopen under the new rules. 12 The humanitarian factors to be considered are: disruption of the family unit, hardship to United States citizens of Lawful Permanent Residents if the petition is revoked; the Beneficiary s long-time residence in and/or family ties in the United States; the Beneficiary s advanced age or poor health; and whether there were significant delays in processing that are the fault of the government. 13 Humanitarian reinstatement is applied for by written request to the US CIS service center or field office, and must include evidence of the death of the petitioner, approval and other evidence regarding the petition, and the substitute I-864 affidavit of support and 10 8 CFR See Policy Memorandum, Approval of Petitions and Applications after the Death of the Qualifying Relative under New Section 204(l)of the Immigration and Nationality Act, PM , Dec. 16, Id. 13 Id.

6 related evidence, if required 14. Only certain family members who are over 18 years of age, domiciled in the US, and who are US citizens or LPRs, can serve as substitute sponsors, and those include: Spouse, parent, mother or father (in-law), sibling, child of at least 18 years of age, son or daughter (in-law), sister or brother (in-law), grandparent or grandchild, and Legal Guardian. 14 Not required if exempt under 8 CFR 213a.2(a)(2)(ii).